Memorandum from Human Rights Watch
DETENTION ISSUES
IN POST-WAR
IRAQ
The Committee has asked Human Rights Watch to
share with it our concerns with regard to detention issues in
Iraq.
We understand that the Committee's primary focus
is on the role of UK Armed Forces and the detention policies practiced
in those facilities under the control of UK forces. While our
most recent first-hand investigations have been of detention practices
of US and Iraqi forces, Human Rights Watch believes that our findings
are relevant to your inquiry. The following memorandum summarizes
our research and findings relating to torture and ill-treatment,
insufficient legal basis for detention or arbitrary arrest, and
lack of transparency and access to places of detention.
Recent revelations regarding abuses carried
out by some members of British Armed Forces in the Basra area
are quite disturbing. Human Rights Watch believes it will be important
for the government to demonstrate that assigning responsibility
to a few "bad apples" is not being used as an alibi
for shifting attention away from high-level policy, as was the
case with abuses at Abu Ghraib and other Iraqi places of detention
under United States control. What is needed therefore is the greatest
possible transparency regarding UK policies on its treatment of
prisoners in Iraq.
CONCERNS REGARDING
US DETENTION POLICIES
AND PRACTICES
IN IRAQ
Human Rights Watch has had a presence in the
Baghdad area for much of the period since the fall of the former
government. During this period we have expressed concern on numerous
occasions to US military authorities regarding its detention policies
and practices. The following issues have been at the forefront
of our concerns regarding detention practices in US-run detention
facilities in Iraq.
Torture and ill-treatment
Human Rights Watch has expressed grave concern
about US interrogation practices in Iraq, and elsewhere, in connection
with counter-terrorism and counterinsurgency activities.
In responding to the revelations of torture
and cruel, inhuman, and degrading treatment in the US-run Abu
Ghraib prison complex, including deaths in custody resulting from
torture and ill-treatment, the administration has shown limited
willingness to conduct criminal investigations to determine responsibility
above the level of the immediate perpetrators and hold those persons
accountable for the abusive policies and practices. In addition,
there has been no impartial and independent government investigation
into responsibility at the highest levels of government for the
policies that led to widespread abusive treatment in US facilities
in Iraq, Afghanistan, Cuba and elsewhere.
The Bush administration has stated on a number
of occasions that its policy "condemns torture" but
it has evaded endorsing the US legal obligation to refrain from
cruel, inhuman, or degrading treatment. The recent written responses
of Attorney General-designate Alberto Gonzalez to US Senate questions
in this regard, and the evident desire of the administration to
provide itself with loopholes that would allow it to circumvent
the absolute prohibition against torture and cruel, inhuman, and
degrading treatment, are particularly disturbing.
As a consequence, the administration has steadfastly
declined to rule out the use of so-called "stress and duress"
interrogation techniques such as prolonged painful positioning,
holding detainees naked, and sleep and sensory deprivation. Such
techniques are explicitly designed themselves to inflict pain
and/or humiliation, and invariably lead to more serious abuses.
Human Rights Watch urges the Committee to inquire
into the policy of the UK forces regarding not only torture, but
also interrogation techniques that may be cruel, inhuman or degrading
treatment.
Legal basis for detentions
The Bush administration has failed to clarify
the legal basis for detentions in Iraq by US forces since it declared
the end of the military occupation in late June 2004. The deliberate
ambiguity the U.S. has maintained over whether it is acting as
an Occupying Power in an international armed conflict or as an
adjunct to the Iraqi Interim Government in a non-international
armed conflict has compromised the protection of detainee rights,
and left the impression that the U.S. is unwilling to recognize
any law as governing its practices.
In his 5 June 2004 letter to the President of
the Security Council, annexed to UN Security Council Resolution
1546, then-Secretary of State Colin Powell stated that the Multi-National
Force will "undertake a broad range of tasks to contribute
to the maintenance of security and to ensure force protection,"
including "internment where this is necessary for imperative
reasons of security." This language, reminiscent of article
78 of the Fourth Geneva Convention on internment of civilians
"for imperative reasons of security," suggests but nowhere
affirms compliance with the Geneva Convention provisions relating
to the treatment of "protected persons" by an Occupying
Power in an international armed conflict. As an Occupying Power,
the United States would also bear many obligations relating to
the protection of security and welfare of the civilian population.
Yet neither the resolution nor the annexed letters
contain any discussion of what law, whether Iraqi law or international
humanitarian law, is to be applied by US forces in this "post-occupation"
period. US officials have elsewhere asserted that an "armed
conflict" exists in Iraq, ostensibly justifying the detention
of captured combatants and civilians deemed to be serious security
risks, but again without any elaboration of specific applicable
law.
Should we accept the US contention that it is
no longer an Occupying Power, the fighting now taking place in
Iraq, in which international forces are deployed at the behest
of the interim Iraqi government, would be appropriately considered
to be a non-international armed conflict. Under such a situation,
common article 3 to the Geneva Conventions applies, together with
customary international humanitarian law and human rights law
(and for the government of the United Kingdom, Protocol II of
the Geneva Conventions). The Iraqi government and foreign forces
acting with its consent may apprehend persons who pose serious
security risks. However, such persons must be charged with criminal
offences under Iraqi law or violations of international law such
as war crimes or crimes against humanity. It is unlawful to detain
them without charge indefinitely or until the end of the armed
conflict.
Current US practices in Iraq violate these legal
requirements. The case review procedure by a Joint Review Board,
set up in August 2004 and comprising US and Iraqi officials falls
short of protecting against long-term indefinite detention without
charge or trial during a non-international armed conflict. Detainees
have no right to participate, to assist in preparation, or to
appeal the board's decision. To date, the only security detainees
to appear before a judge have been a dozen or so "high value"
detainees, including former president Saddam Hussein. Suspected
insurgents, however, have not been charged with criminal offences,
as required by law to justify their continued detention.
This ambiguity as to the law applying to US
detention practices is particularly troubling given indications
that many detentions have been arbitrary. The International Committee
of the Red Cross, in its February 2004 report on treatment of
detainees in Iraq by Coalition forces, reported that Coalition
Forces military intelligence officers estimated that "between
70% and 90% of the persons deprived of their liberty in Iraq had
been arrested by mistake."
It would be important for the Committee to articulate
the legal basis and applicable law governing detentions by UK
forces, and urge the UK to have its allies in the Multi-National
Force do the same.
Lack of transparency and access to places of detention
The US has routinely failed to provide clear
or consistent information on the treatment of civilians detained
in Iraq. This was the case during the period of formal military
occupation, as well as since the declared end of the military
occupation in late June 2004.
Human Rights Watch has called on the US government
to reveal all places of detention where security suspects are
being held, in Iraq and elsewhere, and to permit independent and
impartial monitoring of all such facilities by the International
Committee of the Red Cross and other organizations. Human Rights
Watch regrets the continued failure of the US authorities to respond
positively to its request for access to US-run detention facilities
in Iraq. It is abundantly clear that monitoring of detention facilities
by the armed forces has been insufficient to ensure compliance
with the requirements of international human rights and humanitarian
law with regard to the treatment of detainees.
Human Rights Watch has also criticized the routine
denial of access to legal counsel and family members. Such denial
has contributed to a situation in which abuses are likely to proliferate.
CONCERNS REGARDING
DETENTION POLICIES
AND PRACTICES
OF THE
INTERIM IRAQI
GOVERNMENT
On 25 January 2005, Human Rights Watch published
a 94-page report, The New Iraq? Torture and ill-treatment of detainees
in Iraqi custody which can be found online at http://hrw.org/reports/2005/iraq0105/
. What follows are the main findings of the report.
Scope of the investigation
Human Rights Watch interviewed 90 current and
former detainees in Iraq between July and October 2004, of whom
72 alleged they had been tortured or ill-treated in detention,
usually during interrogation. In all cases the alleged abuse took
place in a detention facility under the jurisdiction of the Ministry
of Interior of the Interim Iraqi Government. At the time of the
interviews, 74 of them were in custody and the remaining 16 had
been released. These included 21 persons arrested for their alleged
affiliation with an armed group or opposition political party,
54 suspects charged with serious criminal offences, and 15 detainees
were held at seven different police stations on various criminal
charges.
Arbitrary arrest and detention
Iraqi police and intelligence services routinely
conduct arrests without warrants issued by an appropriate judicial
authority. Human Rights Watch spoke with 54 detainees at the Central
Criminal Court whom police had accused of a variety of serious
crimes. The vast majority were in court for the first time, having
already been in jail for several weeks, well beyond what is permitted
by Iraqi law. At least 20 were blindfolded, and of those the ones
that Human Rights Watch spoke with said they had been blindfolded
since their arrest days earlier. The detainees spoke of dire conditions
of detention, including severe overcrowding.
Starting in late June 2004 the Iraqi Interim
Government carried out several large-scale and high-profile raids
on districts of Baghdad said to be strongholds of a number of
organized criminal gangs. This report highlights two such raids
conducted in late June and early July 2004 by Ministry of Interior
personnel, with backup provided by Multinational Force personnel.
It appears that the mass arrests were intended to convey to the
public the impression that the Iraqi authorities were making serious
inroads in their campaign against organized crime. In both of
the cases we investigated, the police released the majority of
the suspects within a day or two after the raids, though that
received little press attention. Human Rights Watch followed the
remaining cases through the court system, and found that in many
of those, investigative judges ordered the suspects released because
of insufficient evidence once they were brought before them. The
police appear to have arrested a large number of them randomly
during the operations, either because they happened to be in the
wrong place at the wrong time, or on the basis of unverified tip-offs
from locals. By the time of the release of these detainees, the
police had held them for weeks or months without bringing them
to court, and in some cases certainly tortured or otherwise ill-treated
them.
Only in six of the cases Human Rights Watch
investigated at the Central Criminal Court had officials brought
the defendants before an investigative judge within 24 hours of
their arrest. In the majority of cases, the defendants had no
access to defence counsel before being brought to court, where
they were represented by court-appointed lawyers who lacked knowledge
of their cases and had no prior access to the evidence against
them.
Torture and ill-treatment
The majority of the detainees to whom Human
Rights Watch spoke said that torture and ill-treatment under interrogation
was routine. Some also said that the police also used violence
against them at the time of arrest. The accounts of their treatment
at the hands of the police were consistent to a high degree. Typically,
detainees reported being blindfolded with their hands tied behind
their back while undergoing interrogation. In some cases, detainees
gave Human Rights Watch the first names and ranks of police officials
who they alleged had tortured them or ordered their torture under
interrogation. They said their interrogators or guards kicked,
slapped and punched them, and beat them all over the body using
hosepipes, wooden sticks, iron rods, and cables. Some of them
bore visible traces of external trauma to the head, neck, arms,
legs, and back when examined by Human Rights Watch. These traces
appeared consistent with their accounts of having been repeatedly
beaten. Several bore fresh bruises and lacerations, while others
had scarring that appeared recent. In some cases, detainees also
reported that their interrogators had subjected them to electric
shocks, most commonly by having electric wires attached to their
ears or genitals.
One detainee who was tried on an abduction charge
and acquitted showed Human Rights Watch his dislocated shoulder,
consistent with his account of interrogators suspending him for
prolonged periods from a door handle by his hands, which they
tied together behind his back. Another detainee, one of five people
brought to court on a murder charge, appeared unable to walk unassisted.
Two of his co-defendants brought him to the door of the holding
cell at the Central Criminal Court, where Human Rights Watch spoke
to him. He said he had sustained a strong blow to the head while
being held at al-Bayya' police station following his arrest on
13 August 2003, affecting his central nervous system. He had lost
partial use of his legs, and his speech was partially impaired.
He said detaining officials took him to the Neurosurgical Center
Hospital in the Bab al-Shaikh district of Baghdad on one occasion.
He also showed Human Rights Watch a broken front tooth, which
he said had resulted from a punch in the face.
Human Rights Watch interviewed two of three
detainees brought to the Central Criminal Court by personnel of
the Directorate of Ministry Security and Welfare. All three appeared
to be in poor physical condition. One of them, aged 25, wore a
white dishdasha [traditional long robe] soiled in a number of
places with large red stains that appeared to be blood. His right
eye had dark bruising around it, and there were contusions on
his forehead. Also visible was a wound to the left side of his
head, from which blood had flowed down the side and into his ear,
and looked very recently dried. He told Human Rights Watch that
the police had arrested him and the other two detainees the previous
evening, 17 August, in the vicinity of the Interior Ministry in
the al-Sha'ab district, beaten him badly and brought him to court
the following day. He was unaware of any charges against him.
Human Rights Watch sought to attend his investigative hearing,
but upon checking with the judges in court, none was aware of
his case and said the case had not been assigned to them. Human
Rights Watch subsequently tried to obtain further information
on the defendant through Ministry of Interior officials assigned
to the court, but none was provided and the organization was unable
to establish what happened to him.
The majority of detainees held in the custody
of the Criminal Intelligence Directorate and the Major Crimes
Directorate spoke of dire conditions of detention when interviewed
by Human Rights Watch. In particular, they complained of severe
overcrowding with no room to lie down to sleep at night. Some
detainees said they took turns sleeping, while others said they
sometimes slept while standing. Hygiene was extremely poor—as
attested by the physical appearance of most detainees Human Rights
Watch saw in court. Such detainees complained of lack of washing
and toilet facilities, a constant and overpowering stench of urine
in the cells, and lack of basic medical care, including for a
range of skin afflictions such as lice. Another complaint was
lack of food or water. Most detainees reported that police officials
in charge of these detention facilities rarely provided food,
which detainees had to buy themselves if they happened to have
cash when arrested and if police did not take this money from
them upon searching them. Although the police did not allow any
family visits in these facilities, they reportedly allowed family
members who were able to find out where the detainees were being
held to bring food to the facility, which detainees then sometimes
shared with their cellmates.
We urge the Committee to inquire as to measures
the U.K. forces are taking to ensure they are not complicit in
any abuse by other forces, including Iraqi forces, and what actions
to date the government has taken to facilitate the prevention
and punishment of abuses by allies.
January 2005
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