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Bertrand Russell Peace Foundation
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Catalogue
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How to Lose a War
The Spokesman, 90
Beyond
Abu Ghraib
Some
14,000 people are currently imprisoned in Iraq by the United States and United
Kingdom military, according to official figures. The circumstances of the
detention of these people are examined in Amnesty International’s report
‘Beyond Abu Ghraib: Detention and Torture in Iraq’, from which these
excerpts are taken. It was
published in March 2006
…
Since the invasion of Iraq in March 2003 tens of thousands of people have been
detained by foreign forces, mainly the United States forces, without being
charged or tried and without the right to challenge their detention before a
judicial body. Between August
2004 and November 2005 an administrative review board (the Combined Review and
Release Board), composed of representatives of the Multinational Force and the
Iraqi government, examined the files of almost 22,000 internees and
recommended about 12,000 for release and another 10,000 for continued
detention. The vast majority of ‘security internees’ – that is those
individuals held in connection with the on-going armed conflict who are
considered by the Multinational Force to be a threat to security – have
never been tried. According to statistical data compiled by the Multinational
Force, by the end of November 2005, the Central Criminal Court of Iraq had
tried 1,301 alleged insurgents ...
Most
‘security internees’ are held at four detention facilities under United
States control, namely Camp Bucca near Basra, Abu Ghraib prison in Baghdad,
Camp Cropper in Baghdad and Fort Suse near Suleimaniya, which started
operating at the end of October 2005. In addition, US forces hold detainees
temporarily in various brigade and division internment facilities throughout
the country. A small number of ‘security internees’ are held in the
custody of United Kingdom forces at the detention facility of Shu’aiba Camp,
near Basra. According to the United Kingdom’s Foreign and Commonwealth
Office, at the end of October 2005, the UK forces held 33 security internees,
none of whom were women or children, in their detention facility at al-Shu’aiba.
At
the beginning of 2004 the Coalition Provisional Authority headed by US
ambassador Paul Bremer published a list of about 8,500 detainees on the
Internet. However, the true
figure of those then being held was believed to be much higher.
When the Authority was disbanded in June 2004, the number of detainees
held by the Coalition Forces had fallen to about 6,400 persons, according to a
US military official. However, since the handover of power, the number of
detainees held by the Multinational Force has increased steadily.
In
November 2004, General Geoffrey Miller, then US head of Iraqi detainee
operations, stated that about 8,300 detainees were held by the Multinational
Force. On 1 April 2005, the US
Department of State estimated the number of detainees at about 10,000 persons.
According to the official website of the Multinational Force, at the end of
November 2005 there were more than 14,000 security detainees held in
Multinational Force custody, distributed over the four main US
Legal
background to detentions by the Multinational Force
Following
the US-led invasion in March 2003, Iraq was in a state of international armed
conflict. Consequently, persons deprived of their liberty by the occupying
forces were protected – in addition to applicable human rights law – by
international humanitarian law, namely the Third (Convention relative to the
Treatment of Prisoners of War) or the Fourth (Convention relative to the
Protection of Civilian Persons in Time of War) Geneva Conventions of 1949. The
deprivation of liberty of a person which is ordered by the executive power
without bringing charges against that person is referred to as administrative
detention or internment. The Fourth Geneva Convention, applicable in
situations of international armed conflict, states that internment ‘may be
ordered only if the security of the Detaining Power makes it absolutely
necessary’.
With
the handover of power in June 2004 the legal situation changed; since then
Iraq is considered to be in a situation of non-international armed conflict
with the Multinational Force and the Iraqi security forces on one side and the
insurgents on the other. Therefore, the Geneva Conventions no longer fully
apply to persons detained in connection with the on going armed conflict. In
this situation, all parties including the Multinational Force are bound by
Article 3 common to the four Geneva Conventions, and by customary rules
applicable to non-international armed conflicts, as well as human rights law.
Article 3 common to the Four Geneva Conventions requires that those placed in
detention are treated humanely, though it does not contain detailed provisions
regulating such detention.
Since
the handover of power, the Multinational Force refer to UN Security Council
Resolution 1546 as providing the legal basis for the MNF forces to hold people
in detention in Iraq. Resolution 1546, with its attached exchange of letters
between, for the United States, Secretary of State Colin Powell and, for Iraq,
Prime Minister Ayad Allawi, confers on the Multinational Force authority to
resort to ‘internment where this is necessary for imperative reasons of
security’. Unfortunately, there
is no reference in Resolution 1546 to the legal safeguards that are to apply
to arrests, detention or internment carried out by armed forces and troops
from countries contributing to the Multinational Force. The United Kingdom and
the United States have stated, however, that their internment policies are
also governed by Coalition Provisional Authority Memorandum No. 3 (revised) of
June 2004, which sets out the process of arrest and detention of criminal
suspects, as well as procedures relating to ‘security internees’ detained
by members of the Multinational Force after 28 June 2004.
This
Coalition Provisional Authority Memorandum, which was revised only one day
before the handover of power, details the authority of the Multinational Force
to detain people in Iraq. It elaborates some procedural details regarding
detentions by the Multinational Force and distinguishes between ‘criminal
detainees’ and ‘security internees’. With regard to criminal detainees
the document stipulates: ‘(…) the Multinational Force shall have the right
to apprehend persons who are suspected of having committed criminal acts and
are not considered security internees (hereafter: “criminal detainees”)
who shall be handed over to the Iraqi authorities as soon as reasonably
practicable’.
The
Memorandum established some basic rules for the detention of ‘security
internees’, concerning review procedures, access to internees and other
aspects of their conditions, and the maximum period of internment of children.
Coalition Provisional Authority Memorandum No.3 provides that anyone who is
interned for more than 72 hours is entitled to have the decision to intern
them reviewed within seven days and thereafter at intervals of no more than
six months. The Memorandum also states that the ‘operation, condition and
standards of any internment facility established by the Multinational Force
shall be in accordance with Section IV of the Fourth Geneva Convention’.
Procedures
set out in the Coalition Provisional Authority Memorandum and those which have
been developed in practice are crucially flawed because they fail to meet
international human rights standards guaranteeing the rights of detainees –
including, notably, the right to have access to legal counsel and the right to
challenge the lawfulness of the detention before a court.
In
addition to the provisions of international humanitarian law related to
noninternational armed conflict set out above, human rights law remains
applicable to Iraq. The United States, the United Kingdom and Iraq are all
states parties to the International Covenant on Civil and Political Rights,
which provides basic safeguards for the protection of detainees. As affirmed
by the UN Human Rights Committee (the expert UN body responsible for
overseeing the implementation of the Covenant), international humanitarian law
and human rights law fully complement one another during times of armed
conflict. The relevant treaties governing non-international armed conflict do
not contain specific rules regarding questions such as for what duration and
under what procedures (Protocol II explicitly accepts internment but does not
regulate it) persons may be interned. It is human rights law that squarely
addresses this question.
Amnesty
International considers the Multinational Force system of security internment
in Iraq to be arbitrary – in violation of fundamental human rights. All
detainees, including security internees, are protected by Article 9 of the
Convention, which provides that no one should be subjected to arbitrary
detention and that deprivation of liberty must be based on grounds and
procedures established by law (para 1). Detainees must also have access to a
court empowered to rule without delay on the lawfulness of their detention and
to order their release if the detention is found to be unlawful (para 4).
These requirements apply to ‘anyone who is deprived of his liberty by arrest
or detention’ and therefore apply fully to those interned by the
Multinational Force.
The
Convention (under Article 4) does allow for derogation of some provisions of
the Covenant during proclaimed states of emergency, including at a time of
armed conflict. However, measures derogating from the Covenant are allowed
only if and to the extent that the situation constitutes a threat to the life
of the nation. The Human Rights Committee has emphasized that ‘States
parties may in no circumstances invoke Article 4 of the Covenant as
justification for acting in violation of humanitarian law or peremptory norms
of international law, for instance … through arbitrary deprivations of
liberty’. Neither the United States nor the United Kingdom governments,
however, have taken the steps necessary formally to derogate from any of their
obligations under the Convention (which derogation requires that governments
notify the Human Rights Committee formally of their intention to derogate from
relevant Convention provisions).
At
all times, internees must be provided the right to an effective remedy
(Convention Article 3(2)), including habeas corpus, so that a court may
decide without delay on the lawfulness of the detention and order release if
the detention is not lawful (Article 9(4)). A person detained on suspicion of
criminal activity must be brought promptly before a judge (Convention Article
9(3)) and either released or provided a fair trial before an independent and
impartial tribunal established by law (Convention Article 14).
Review
process
Jawad
M, an Iraqi
national who worked for the US forces at military bases in Baghdad, was
detained by US forces in August 2004. In October 2004 he received a document
from the Office of the Deputy Commanding General, Detainee Operations,
Multinational Force-Iraq which informed him about an upcoming review session
and included the following one-sentence accusation: ‘Gathering of
information on interpreters and employees with the Multinational Force’. No
further explanation or reference to any relevant legislation was provided. He
was not charged or tried. Reviews of his case were conducted by an
administrative body before which he was not permitted to appear. Following his
release from Abu Ghraib prison at the beginning of 2005, Jawad M told Amnesty
International that he still did not know the reasons for his internment. He
said: ‘It was useless. I was there for five months and I knew that nobody
can do anything. Until now I don’t know why they sent me to the prison and
why I was released and whose decision that was.’
The
case of Jawad M illustrates the way in which many internees are detained
arbitrarily by the Multinational Force. In violation of international human
rights law, tens of thousands of internees have been held for weeks or months
and thousands for more than one year without being charged or tried and with
no right to challenge the lawfulness of their detention before a judicial
body. They have received no information regarding the grounds for their
detention, whether they will be charged and brought to trial or, if not, for
how long they are likely to be detained.
As
detailed below, the United States and United Kingdom have established separate
systems for reviewing cases of internees held by their respective forces.
Both systems have in common that they fail to meet international human
rights law and standards – including the requirement for court oversight of
the detention. Despite the involvement of consultative bodies in the process,
the ultimate decision about the release or continued internment of a person
lies with military commanders.
Review
for internees held by US forces
The
Multinational Force’s internment procedures were criticised by Iraqi Justice
Minister ’Abd al-Hussain Shandal in September 2005. Speaking to Reuters news
agency, he complained: ‘No citizen should be arrested without a court order
(…) There is abuse [of human rights] due to detentions, which are overseen
by the Multinational Force and are not in the control of the Justice
Ministry’.
Since
the handover of power in mid-2004, however, the Iraqi authorities have
participated in reviewing cases of internees held by the Multinational Force
in line with changes announced by the US Department of Defense in August 2004.
After
the handover, a body called the Combined Review and Release Board was
established, comprising two representatives each from the Iraqi ministries of
Justice, the Interior and Human Rights and three Multinational Force officers.
This body reviews the cases of internees and makes recommendations
regarding their release or continued detention – according to Human Rights
Ministry officials these recommendations are made by majority and none of the
board’s members has a power of veto – but its recommendations are not
binding and it is the Multinational Force’s Deputy Commanding General for
Detainee Operations who decides whether or not a detainee should be released
after first consulting Iraq’s Minister of Justice.
The
US government’s 2005 report to the UN Committee against Torture provided the
following description of the detention review process:
Coalition
Provisional Authority Memorandum No. 3 stipulates that the review within seven
days must be followed by further reviews at intervals of no more than six
months. In practice, these appear generally to be respected with some reviews
being done at more frequent intervals. In considering cases, the Combined
Review and Release Board has three possible options to recommend:
unconditional release, release with a suitable guarantor from the detainee’s
community, or continued internment. Neither the internee nor his or her legal
counsel are permitted to be present during these case reviews, though
internees have reportedly been encouraged to make submissions to the Combined
Review and Release Board in writing.
Between
the establishment of the Combined Review and Release Board in August 2004 and
28 November 2005, the Board reviewed the files of 21,995 internees, of whom
4,426 were recommended for unconditional release, 7,626 for release with a
guarantor and 9,903 for continued internment. According to the US Department
of Defense, the Combined Review and Release Board when making a decision is to
take into consideration the ‘circumstances of the detainee’s capture, the
length of detention prior to review, the level of cooperation by the detainee,
and the detainee’s potential for further acts of anti-Iraqi misconduct if
released’.
In
its report to the UN Committee against Torture, the US government referred to
the practice of having a military magistrate conduct the initial review within
seven days, but such reviews appear generally to be paper-based reviews, in
which the internee’s file is considered without his being present.
In
one case that received considerable media attention, however, a security
internee was permitted to be present during the review of his detention
conducted by US military officers. But the review procedure followed in the
case of 44-yearold US national Cyrus Kar, a film-maker, differed from
the normal procedure. Kar and his
cameraman, Farshid Faraji, were detained on 17 May 2005 by Iraqi
security forces while riding a taxi in Baghdad. Whilst Farshid Faraji was held
for almost two months in detention by the Iraqi authorities, Cyrus Kar was
handed over to the US forces. Kar was denied access to a lawyer during his
detention but on 4 July 2005 he was brought before a review board composed of
three US military officers. He was released on 10 July, after which he
commented: ‘I couldn’t have more respect for the rank-and-file soldiers,
but the system is broken. When an
Iraqi is detained there, he comes out angry and wanting payback’.
Review
for internees held by UK forces
Cases
of detainees interned by United Kingdom forces are reviewed by the Divisional
Internment Review Committee, which is composed entirely of Multinational Force
officials. Its members are the United Kingdom military chief of staff, another
senior officer, the chief legal officer and another legal officer and the
chief political advisor. However, the final decision as to whether a detainee
should continue to be interned or released rests with the Governing Officer
Commanding.
The
initial review has to take place within 48 hours of internment and thereafter
monthly. An interned person may
address written submissions to the Divisional Internment Review Committee, but
neither the internee nor his or her legal representative may be present when
the Committee reviews the internee’s case.
The
Governing Officer Commanding informs internees in writing, stating the
reasons, when it is determined that they should continue to be interned.
However, Amnesty International is concerned that even after months of
internment the Multinational Force continues to hold internees without
providing them or their legal counsel with substantive evidence to justify
their detention.
For
example, a 48-year-old dual national with UK and Iraqi citizenship, Hillal
’Abdul Razzaq ’Ali al-Jedda, has been detained since his arrest on 10
October 2004 in Baghdad. He filed a case against the United Kingdom Secretary
of State for Defence challenging his internment in Iraq, which was dismissed
by the High Court of England and Wales on 12 August 2005. However, the court
noted that ‘Although detained for imperative reasons of security, the
claimant has not been charged with any offence; and the Secretary of State
acknowledges that, as matters stand, there is insufficient material available
which could be used in court to support criminal charges against him. The
claimant is therefore detained simply on a preventive basis.’ In
mid-February 2006, Hillal ’Abdul Razzaq ’Ali al-Jedda continued to be held
without charge or trial by United Kingdom forces. In January 2006, an appeal
against the decision of the High Court was heard in the Court of Appeal of
England and Wales but judgment was still awaited in mid-February.
Length
of internment
Different
provisions exist for detainees held by the Multinational Force since before
the mid-2004 transfer of power to a new Iraqi government and those detained
since that time. Detainees in the first category may be held indefinitely,
whereas those detained and interned since 30 June 2004, according to Coalition
Provisional Authority Memorandum No. 3, ‘must be either released from
internment or transferred to the Iraqi criminal jurisdiction no later than 18
months from the date of induction into a Multinational Force internment
facility.’
This
requirement of release after 18 months is not absolute, however. Even the
detainees interned after the handover can be held for more prolonged periods
at the approval of the Joint Detention Committee. This requires that an
application for further internment is made to the Joint Detention Committee
two months before the expiry of the initial internment period of 18 months; if
the Committee sanctions continued internment it must specify the duration.
According to the Human Rights Annual Report 2005 of the United Kingdom Foreign
and Commonwealth Office, published in July 2005, the Joint Detention Committee
had still to be convened for UK-held internees because none of them by then
had been held for as long as 18 months. In mid-February 2006 an application
for the extension of internment beyond 18 months of 266 detainees had been
made to the Joint Detention Committee.
Amnesty
International is concerned about hundreds of security internees who have been
detained by the Multinational Force since before the handover of power and may
be held indefinitely. In a letter to Amnesty International dated 19 February
2006, Major General Gardner, commander of Task Force 134, which is in charge
of Multinational Force detention operations, stated that at the end of 2005
the number of security internees held for more than 18 months was estimated to
be 751. The letter confirmed that approval by the Joint Detention Committee to
keep an internee beyond 18 months is only required for ‘internees detained
after 30 June 2004’.
Amnesty
International considers indefinite internment as practised by the
Multinational Force with regard to security internees held since before the
handover of power to be unlawful. According to The UN Working Group on
Arbitrary Detentions (established by the UN Commission on Human Rights):
‘With
regard to derogations that are unlawful and inconsistent with States’
obligations under international law, the Working Group reaffirms that the
fight against terrorism may undeniably require specific limits on certain
guarantees, including those concerning detention and the right to a fair
trial. It nevertheless points out that under any circumstances, and whatever
the threat, there are rights which cannot be derogated from, that in no
event may an arrest based on emergency legislation last indefinitely, and
it is particularly important that measures adopted in states of emergency
should be strictly commensurate with the extent of the danger invoked.’
Amnesty
International also considers that indefinite internment may constitute a
violation of the prohibition on torture and other cruel, inhuman or degrading
treatment or punishment. Any deprivation of liberty, even when carried out in
accordance with international humanitarian law, inevitably causes some stress
or a degree of mental suffering to the internee and his or her family,
although this will not automatically render the deprivation unlawful. However,
Amnesty International is concerned that the ‘security internees’ held by
the Multinational Force, are being deprived of their liberty in circumstances
that cause unnecessary suffering, such as indefinite and incommunicado
detention, that cannot be justified as an unavoidable part of a ‘lawful
sanction’. The UN Committee against Torture has found that administrative
detention by a party to an armed conflict may constitute cruel, inhuman or
degrading treatment or punishment, based inter alia on its excessive
length. In addition, the Human Rights Committee has referred to prolonged,
indefinite ‘administrative detention’ as incompatible with Article 7 of
the International Convention on Civil and Political Rights, which prohibits,
among other things, torture and cruel, inhuman or degrading treatment or
punishment.
Indefinite
detention causes uncertainty and mental anguish for many internees in Iraq –
some of whom have been held for more than two years. Many relatives of
detainees with whom Amnesty International has been in regular contact have
expressed their despair. For example, in January 2006 the organization
received the following email communication sent by a man whose brother had
been held for almost two years:
The
number of long-term detainees has reportedly increased since September 2005.
According to the Iraqi Human Rights Ministry, on 28 September 2005 there were
1,443 detainees held by the Multinational Force for more than one year.
However, according to figures provided by US officials, in early November
2005, among the nearly 13,900 detainees held by the Multinational Force there
were some 3,800 who had by then been held for more than one year and more than
200 who had been held for more than two years.
Amnesty
International knows of internees who at the beginning of 2006 had been held
for more than two years without having been charged or tried. For example, Kamal
Muhammad ’Abdullah al-Jibouri, a 43-year-old former soldier married with
11 children, continued to be held in early February 2006, after some two years
in detention without charge or trial. He was detained on 5 February 2004 by US
troops in the al-Khusum village of the Salaheddin governorate. He was held at
Abu Ghraib prison initially, but transferred to Camp Bucca, near Basra, in May
2005. Since his transfer, it has become particularly difficult for his
relatives to visit him. Two relatives of Kamal Muhammad ’Abdullah al-Jibouri,
both aged about 40, were also detained by US troops on 5 February 2004 in al-Khusum
village. At least one of the two was reportedly transferred at the end of 2005
to Fort Suse, near Suleimaniya in northern Iraq. As of February 2006, both
men, like Kamal Muhammad ’Abdullah al-Jibouri, continued to be held without
charge or trial.
Treatment
of internees
Although
the US authorities introduced various measures to safeguard prisoners after
the Abu Ghraib prison scandal, there continue to be reports of torture or ill
treatment of detainees by US troops. In September 2005, several members of the
US National Guard’s 184th Infantry Regiment were sentenced to prison terms
in connection with torture or ill-treatment of Iraqis who had reportedly been
detained in March 2005 following an attack on a power plant near Baghdad.
According to media reports, the abuse involved the use of an electro-shock gun
on handcuffed and blindfolded detainees. The Los Angeles Times referred
to a member of the battalion having reported that ‘the stun gun was used on
at least one man’s testicles’.
The
abuse was investigated after a soldier who was not involved in the
mistreatment discovered film footage showing parts of the abuse on a laptop
computer. At least twelve soldiers from the National Guard’s 184th Infantry
Regiment were charged with misconduct ‘relating to abuse and maltreatment of
detainees’. Three sergeants were sentenced to between five and twelve months
of imprisonment and four other soldiers were sentenced to hard labour.
In
another incident, five soldiers from the 75th Ranger Regiment were charged
before a court martial in connection with allegations of detainee abuse. The
case arose from an incident on 7 September 2005 when three detainees were
allegedly punched and kicked by the five US soldiers as they were awaiting
movement to a detention facility. On 21 December 2005, it was announced that
the five soldiers had been sentenced to be confined for periods ranging from
30 days to six months and reductions in rank.
Amnesty
International has noted that in the above cases, US officials have apparently
taken swift action to investigate the allegations of abuse and to prosecute
the perpetrators. However, given that torture or ill-treatment have continued,
the organization is concerned that insufficient safeguards have been put in
place in order to protect detainees from the recurrence of abuse.
Amnesty
International has interviewed former detainees and relatives of detainees held
by the Multinational Force about treatment of detainees after the handover of
power in June 2004. In one reported incident an electro-shock gun (taser) was
used against detainees in circumstances which violate international human
rights law prohibiting torture or ill-treatment. According to an eye-witness,
in November 2005 a US guard at Camp Bucca used a taser against two detainees
while they were being transferred in a vehicle to a medical appointment within
the detention facility, shocking one on the arm and the other on his abdomen.
Electro-shock
weapons have been developed as a non-lethal force option to be used to control
dangerous or combative individuals. Amnesty International considers that
electro-shock weapons are inherently open to abuse as they can inflict severe
pain without leaving substantial marks, and can further be used to inflict
repeated shocks.
Under
Coalition Provisional Authority Memorandum No. 3, the Multinational Force was
required to ensure that conditions and standards in all of its internment
facilities satisfy Section IV of the Fourth Geneva Convention, which sets out
standards for the treatment of detainees, including in relation to food,
hygiene and the provision of medical attention, as well as contact with the
outside world and penal and disciplinary sanctions.
Article
119 of the Fourth Geneva Convention provides that internees may not be
punished other than by fines, discontinuance of privileges, fatigue duties –
which may only be ‘in connection with the maintenance of the place of
internment’ and not exceed two hours daily – and confinement. Article 119
further provides: ‘In no case shall disciplinary penalties be inhuman,
brutal or dangerous for the health of internees. Account shall be taken of the
internee’s age, sex and state of health.’
Despite
this, former internees have alleged that disciplinary or penal sanctions have
been used which breach the above provisions of the Fourth Geneva Convention
and appear also to constitute a violation of international human rights
treaties prohibiting torture or ill-treatment. In particular, internees at
Camp Bucca are alleged to have been exposed deliberately to extremes of both
heat and cold, by being made to wait for hours in the heat of the sun while
their accommodation was searched and forcibly showered with cold water and
exposed to cold air conditioners.
Amnesty
International has previously expressed concern to the US authorities regarding
their use of a restraint chair for detainees in Iraq. On 28 October 2005, John
Moore of Getty Images photographed an individual – reportedly a juvenile
detained in the maximum security section of Abu Ghraib prison – strapped
into a four-point restraint chair. US Army military police reportedly said
that he was being ‘punished for disrespecting them’ and would remain for
two hours in the chair ‘as punishment’.
The
photograph showed the detainee tightly immobilized. He had straps across his
chest and his wrists and ankles were bound, with his legs bent at the knee,
and his head was thrown back. Such a position would appear to carry a
significant health risk as well as cause discomfort and pain. Prolonged
immobilization in restraints is known to carry a risk of blood clots or
asphyxia. On 15 December 2005, Amnesty International wrote to the
Multinational Force Task Force 134, which is responsible for Detainee
Operations in Iraq, stating that the organization would ‘consider the manner
of restraint shown to amount to cruel, inhuman or degrading treatment and in
violation of the US’s obligations under international human rights
treaties’.
In
a letter of 17 January 2006, Major General John D. Gardner, commander of
Multinational Force Task Force 134, responded to Amnesty International stating
that ‘in accordance with US Army policy, restraint cannot be used as a form
of punishment’. He continued that a restraint chair may be used in order to
gain control of a violent detainee. However, Amnesty International was
informed that the incident was being investigated and that policies concerning
the use of the restraint chair were under review. The use of the restraint
chair has been suspended until the conclusions of this review.
Access
to the outside world
Coalition
Provisional Authority Memorandum No. 3 is deficient in several respects
insofar as the question of access to detainees is concerned. In particular,
while it provides for the International Committee of the Red Cross to have
access to detainees, it qualifies this, stating that access by the
International Committee of the Red Cross can be denied ‘for reasons of
imperative necessity as an exceptional and temporary measure’.
There
are no regulations spelled out in the Memorandum regarding internees’ right
of access to relatives or legal counsel. It states that the provisions of
section 4 of the Fourth Geneva Convention apply, which include some reference
to contact with relatives and legal counsel, but it makes no reference to
other international standards relating to the rights of detainees, such as The
Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, and the Declaration on the Protection of All
Persons From Enforced Disappearance.
Amnesty
International is concerned that the Multinational Force’s failure to
guarantee detainees’ access to the outside world, including to their
families and to legal counsel, has been a contributory factor facilitating
torture and ill-treatment and other human rights abuses of detainees. Such
denial of access poses a continuing risk of further such abuses.
Visits
by relatives
During
the first weeks after arrest detainees held by US forces of the Multinational
Force have no access to their families or legal counsel. According to the Detainee
visitation rules and guidelines issued by the US military in July 2005,
security internees are not entitled to receive visits during the first 60 days
of internment.
US
forces have imposed these restrictions also in high profile cases. For
example, Ali Omar Ibrahim Al-Mashhadani, a 36-year-old cameraman for Reuters
news agency, was arrested on 8 August 2005 in Ramadi by US forces after a
search of his house. Reuters Global Managing Editor Director, David
Schlesinger, protested the decision to detain the cameraman without any
charges and the restrictions on his access to the outside world: ‘I am
shocked and appalled that such decision could be taken without his having
access to legal counsel of his choosing, his family or his employers.’
Despite this protest, Ali Omar Ibrahim Al- Mashhadani could not be visited
before the expiry of the 60 days limit. His family visited him for the first
time on 7 October 2005 at Abu Ghraib prison. He was transferred to Camp Buca,
near Basra, the same day. He was released in mid- January 2006 without having
been charged or tried.
Internees
held by the United Kingdom forces have also complained about delayed access to
the outside world. Hillal ’Abdul Razzaq ’Ali al-Jedda, a 48-
year-old dual national with UK and Iraqi citizenship, was arrested at his
sister’s house in Baghdad on 10 October 2004 by US troops who were
accompanied by Iraqi security forces. He reported that during his arrest he
was beaten, forced to the floor, hooded and tightly handcuffed, causing pain.
At Baghdad Airport he was handed over to the United Kingdom forces and
transferred to the UK-controlled Shu’aiba Divisional Temporary Detention
Facility, near Basra. For the first 28 days of his detention he was reportedly
held in solitary confinement in a small and badly ventilated cell. He claims
that his family was only informed about his whereabouts 33 days after his
detention. According to the United Kingdom authorities ‘[s]tandard operating
practices require the Multinational Force to inform relatives of the detention
of internees within 24 hours of their internment’.
Some
relatives of detainees have told human rights organizations, including
Amnesty
International, that for weeks or months they were not able to establish the
whereabouts of a detainee. The Christian Peacemaker Teams reported the case of
’Adnan Talib Hassan Al-’Unaibi, an imam in the town of Hilla, who
was detained by US forces on 1 May 2004 while attending a public meeting at
the premises of a local human rights organization. During the raid US forces
reportedly killed two people. After the detention a brother of the imam went
to the Iraqi Assistance Centre in Baghdad to find out his whereabouts.
However, the detention was only confirmed at the end of May 2004 after the
brother had obtained more information from released detainees – including
the prisoner’s sequence number. Despite numerous inquiries, relatives were
not able to establish ’Adnan Talib Hassan Al-’Unaibi’s whereabouts for
several months. They were only allowed to visit him after he had been in
detention for five months. He was eventually released uncharged in September
2005.
In
principle, internees are entitled to four visits per month or one visit per
week after they have passed the first 60 days of detention. However, relatives
have frequently reported that they were not able to conduct visits, because
the detention facility was located far away and travelling long distances in
Iraq is unsafe.
Visits
by legal counsel
After
the first 60 days of internment, internees are entitled to receive visits by
legal counsel. Amnesty International has asked numerous relatives of
internees, former internees, lawyers and human rights activists about the
possibilities of security internees seeking the support of legal counsel. It
appears that visits to security detainees by legal counsel are extremely rare.
The main reason for this seems to be the belief that it is futile to seek
legal counsel when the detainee will not be brought before a court of law.
Former internees and lawyers alike have told Amnesty International they did
not believe that a lawyer could have significantly furthered the case of a
security internee.
Visits
by monitoring bodies
As
indicated earlier, Coalition Provisional Authority Memorandum No 3 in
principle grants the International Committee for the Red Cross access to
Multinational Force-held detainees at locations throughout the country. In
practice, however, the International Committee for the Red Cross has been able
to visit only a limited number of larger detention facilities, mostly due to
security considerations. According to the International Committee of the Red
Cross, in the period from May to September 2005 ‘the main
detention/internment facilities covered during that period were Camp Cropper
(Baghdad Airport); Camp Bucca near the southern town of Basra; and several
detention places in Kurdistan’. According
to the Multinational Force, the International Committee for the Red Cross has
‘access to all Theater Internment Facilities in the theatre’. Amnesty
International
understands from this that the International Committee for the Red
Cross
does not have access to brigade and division internment facilities of the
Multinational
Force – that is, military bases where detainees are mainly held during the
first days or weeks of their detention.
Therefore,
in many locations of detention under Multinational Force control, no
independent body is currently able to monitor the treatment of detainees held
by the Multinational Force. Yet, visits to places of detention by independent
monitoring bodies are an important safeguard for persons deprived of their
liberty. Visits enable experts to
examine at first hand the conditions of detention and treatment of detainees
and to make recommendations for improvements. Visits can have a deterrent
effect against abuse and provide a necessary link for detainees with the
outside world.
According
to the United Kingdom authorities, the International Committee for the Red
Cross has ‘full and unrestricted access’ to its detention facilities in
Iraq and the International Committee for the Red Cross has described
conditions of internment as ‘generally good’.
The
Iraqi Human Rights Ministry is conducting periodic visits to detention
facilities under the control of the Multinational Force. The ministry has
opened an office at Abu Ghraib prison which is also monitoring the situation
of internees held by the Multinational Force. The ministry is circulating
regular reports on its monitoring activities concerning the situation of
detainees in Iraq. An official of the ministry told Amnesty International that
its monitoring includes occasional visits to brigade and division internment
facilities of the Multinational Force.
Several
UN human rights experts have faced obstacles in their attempts to visit
detainees held by the US forces – including those held in Iraq. In a
statement issued on 18 November 2005, five independent experts of the UN
Commission on Human Rights – including the Chairperson-Rapporteur of the
Working Group on Arbitrary Detention and the Special Rapporteur on Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment – expressed their
regret about the US refusal of terms for a fact finding mission to the US
detention facility at Guantánamo Bay, Cuba. This statement followed a letter
of 25 June 2004 and several follow-up letters sent by UN human rights experts
to the US authorities requesting to visit ‘those persons arrested, detained
or tried on grounds of alleged terrorism or other violations, in Iraq,
Afghanistan, the Guantánamo Bay military base and elsewhere’. At the time
of writing, none of the five UN human rights experts had been able to visit US
detention facilities in Iraq.
Secret
and unacknowledged detention
The
US has held an unknown number of persons detained in Iraq without any contact
with the outside world in violation of international standards. These so
called ‘ghost detainees’ were largely hidden to prevent the International
Committee of the Red Cross from visiting them.
On
17 June 2004, US Defense Secretary Donald H. Rumsfeld admitted that in
November 2003 he ordered military officials to detain a senior member of Ansar
al-Islam without listing him in the prison’s register. This prisoner was
reportedly arrested in late June or early July 2003 and was transferred to an
undisclosed location outside Iraq. He was returned to Iraq where he was
detained in secret until May 2004 without being registered or assigned a
prison register number.
There
are indications that persons detained in Iraq have secretly been transferred
outside Iraq for interrogation by the CIA. For example, Hassan Ghul, a
Pakistani national reportedly detained in January 2004 in northern Iraq, is
according to Human Rights Watch possibly held in CIA custody. According to a
report in the Swiss newspaper, Der Sonntagsblick, a confidential
communication of the Egyptian Foreign Ministry to its embassy in London
intercepted by the Swiss secret service, stated that Egyptian intelligence
could confirm that 23 Iraqi and Afghan citizens have been interrogated by US
intelligence agents at the military air base Mihael Kogalniceanu in Romania.
The communication further stated that similar interrogation centres existed in
the Ukraine, Kosovo, Macedonia and Bulgaria.
In
at least one incident US officials have tried to cover up the death of an
unacknowledged detainee in Iraq. Mandel al-Jamadi was detained by US
troops and placed in Abu Ghraib prison where he died on 4 November 2003 as an
unregistered detainee. Documents obtained by the American Civil Liberties
Union under the US Freedom of Information Act, suggest that Mandel al-Jamadi
died due to ‘blunt force injuries complicated by compromised respiration’.
US
officials have defended the practice of denying detainees access to the
International Committee of the Red Cross for purposes of ‘imperative
military necessity’. Under Article 143 of the Fourth Geneva Convention, the
International Committee of the Red Cross visits to civilian internees may be
denied ‘for reasons of imperative military necessity’, but ‘only as an
exceptional and temporary measure’. In Iraq in January 2004, the US
authorities invoked ‘military necessity’ when they refused to grant the
International Committee of the Red Cross access to eight detainees held in Abu
Ghraib. According to the Fay report, one of the eight detainees, a Syrian
national, was at that time held in a tiny dark cell without windows, toilet or
bedding. The inhumane treatment of this Syrian detainee, facilitated by the
invocation of ‘military necessity’, was not limited to solitary
confinement in harsh conditions. Around 18 December 2003, he was abused and
threatened with dogs. According to the US military, there is a photograph of
him kneeling on the floor with his hands tied behind his back, while an
unmuzzled dog is snarling a few feet from his face. During an International
Committee of the Red
Cross
visit in mid-March 2004, the organization’s delegates were again denied
access to him, and other detainees, on the grounds of ‘military
necessity’. In January and March 2004, the International Committee of the
Red Cross questioned the ‘exceptional and temporary’ nature of the denial
of access. By the time of its March visit, the Syrian detainee had been held
incommunicado and under interrogation for four months.
US
military investigations have suggested that up to 100 so-called ghost
detainees may have been held in US detention facilities in Iraq. However, the
Church report summary of March 2005 stated that ‘the practice of Department
of Defense holding “ghost detainees” has now ceased’.
The
practice of holding detainees in secret, with no contact with the outside
world, places the person outside the protection of the law, denying them
important safeguards and leaving them vulnerable to torture and ill-treatment.
They have no access to lawyers, families or doctors. They are often kept in
prolonged arbitrary detention without charge or trial. They are unable to
challenge their arrest or detention, whose lawfulness is not assessed by any
judge or similar authority. Their
treatment and conditions are not monitored by any independent body, national
or international. The secrecy of their detention allows the concealment of any
further human rights violations they suffer, including torture or
ill-treatment, and allows governments to evade accountability.
In
certain circumstances, when people are held in secret detention and the
authorities refuse to disclose their fate or whereabouts, they have
‘disappeared’. This practice,
known as enforced disappearance, is expressly prohibited under international
law. International law requires that any person deprived of their liberty must
be held in an officially recognized place of detention.
Enforced
disappearance violates the rules of international law which provide for, among
others, the right to recognition as a person before the law, the right to
liberty and security of the person, and the right not to be subjected to
torture or other ill-treatment. It also violates – or constitutes a grave
threat to – the right to life. In certain circumstances, enforced
disappearance can also be a crime against humanity.
International
human rights bodies have held that secret detention and enforced
disappearances themselves constitute ill-treatment or torture, in view of the
considerable suffering of persons detained without contact with their families
or anyone else from the outside world, and without knowing when or even if
they will ever be freed or allowed to see their families again.
The
same is true for the suffering caused to family members of ‘disappeared’
persons. In a number of cases, international human rights bodies have held
that the authorities’ denial of their right to know what has happened to
their relatives has violated the prohibition of torture and ill-treatment.
Internment
of women and children
Coalition
Provisional Authority Memorandum No.3 includes provisions for the internment
of children: ‘Any person under the age of 18 interned at any time shall in
all cases be released not later than 12 months after the initial date of
internment’.
According
to the United Kingdom authorities, there are no UK or US detention facilities
allocated for women or children in Iraq. They further stated that at US
detention facilities women and juveniles are segregated from adult males
unless they are members of the same family. As of October 2005, United Kingdom
authorities were not holding any women or children in detention.
At
the end of September 2005 there were about 200 juveniles held by the
Multinational Force who were scheduled to be transferred shortly to the
jurisdiction of the Iraqi Ministry of Labour and Social Affairs. The newspaper
al- Sharq al-Awsat reported in December 2005 that the Iraqi Judicial
Council had appointed a judge to deal specifically with cases of detained
juveniles held by the Multinational Force.
At
the end of January 2006, a US military spokesman announced the release of five
woman detainees, while four others remained held by the US forces.
‘High
Value’ Detainees
The
vast majority of detainees who were held or continue to be held by the
Multinational Force without charge or trial are so called ‘security
internees’– that is, persons detained in the context of the ongoing armed
conflict. In addition, US forces continue to hold so-called high value
detainees – a category which has mainly been used for persons with senior
positions under Saddam Hussain’s government. Coalition Provisional Authority
Order No. 99 refers to a Memorandum of Understanding between the Multinational
Force and Iraqi authorities regarding “the handling of High Value
Detainees.” Amnesty
At
least two ‘high value’ detainees have died in custody under circumstances
suggesting that torture or ill-treatment caused or contributed to their
deaths. ’Abd Hamad Mawoush, a major general in the Iraqi army under
Saddam Hussain, died in US detention on 26 November 2003 after having a
sleeping bag forced over his head and body and one of his interrogators sat on
his chest. On 23 January 2006, a US court martial convicted a US army
interrogator of his killing and sentenced the soldier to forfeit $6,000 of his
salary. Muhammad Mun’im al-Izmerly, a 65- year-old chemical
scientist, was detained in April 2003 and taken to Camp Cropper where he died
in January 2004. An autopsy report found that he ‘died from a sudden hit to
his head’.
The
group of ‘high value’ detainees included former prisoners of war who are
now standing trial. Some former prisoners of war, including Saddam Hussain,
have been referred to the Supreme Iraqi Criminal Tribunal (formerly known as
Iraqi Special Tribunal). Although standing before an Iraqi court, Saddam
Hussain and several others continue to be held in the custody of the
Multinational Force at the request of the Iraqi authorities.
According
to Multinational Force Task Force 134, in mid-February 2006 thirteen “high
value” detainees continue to be held without charge or trial. Their cases
were said to be subject to review by the High Value Detainee Special Review
Committee, described as a ‘U.S. Government panel staffed by military and
civilian security and intelligence specialists qualified to assess security
threat, as well as by representatives of the Regime Crimes Liaison office,
which acts in support of the Iraqi Higher Tribunal’.
Earlier,
the US government stated in its report to the UN Committee Against Torture,
that US forces in Iraq were holding a ‘small number of enemy prisoners of
war’. These apparently included persons who had been detained as prisoners
of war between March 2003 and June 2004, and therefore should have been
released or charged at the end of the occupation on 28 June 2004.
Amnesty
International calls on the Iraqi Authorities and the international community
to ensure that all persons who have been responsible for human rights
violations under the government of Saddam Hussain are brought to justice in
trials conforming to international standards. However, according to Amnesty
International’s information – nearly three years after the demise of
Saddam Hussain’s government – some former officials of that government
continue to be held without charge or trial.
Most
of the ‘high value’ detainees – if not all of them – are currently
being held at Camp Cropper, a detention facility of the US forces near Baghdad
Airport. Relatives of ‘high
value’ detainees have reported restrictions on visits. According to a former
detainee at Camp Cropper, visits by relatives are generally only allowed once
every three months. For example, Huda Salih Mehdi ’Ammash, the only
female member of the Revolutionary Command Council under Saddam Hussain’s
government, was reportedly permitted family visits on only four occasions
during her detention from May 2003 until November 2005.
In
December 2005, several ‘high value’ detainees were released without having
been charged or tried. They included two women scientists, namely (the above
mentioned) Huda Salih Mehdi ’Ammash and Rihab Rashid Taha. Both had
been held in US detention for about 30 months.
Amnesty’s
recommendations arising from this report, together with the references to it,
are available online (www.amnesty.org).
