Iraq Transition, Interim Constitution, and Human Rights:
Legal Standards Governing Treatment of Iraqi Detainees by Iraqi Security Forces During U.S. Occupation
by Steven C. Welsh
In addition to abuse, or alleged abuse, by U.S. and allied forces against detainees in Iraq, allegations have surfaced of Iraqi-on-Iraqi abuse by Iraqi government agents, such as Iraqi police, against Iraqi prisoners.
Such reports are especially troubling given that a primary rationale advanced for the U.S. and allied invasion of Iraq was humanitarian intervention: to overthrow a brutal dictatorship and attempt to replace it with a government founded upon principles of democracy, rule of law, and respect for human rights. Additionally troubling is the question of whether the U.S.-led alliance “bit off more than it could chew” by taking on such a daunting task, with detainee abuse by the alliance and the Iraqis perhaps exemplifying not only moral and legal challenges but also tests to the logistical limits of selecting, training, and holding accountable large numbers of personnel in such a monumental undertaking. The same poor planning and lack of capacity resulting in shortages of armor arguably could be said to be exemplified by the chaos at Abu Ghraib and apparent problems at staffing the Iraqi police forces fully with law-abiding professionals.
Within the context of a still-intense insurrection, also of great concern could be the impact of prisoner abuse on Iraqi attitudes towards the legitimacy of the new Iraqi government and the presence of foreign occupiers. On the other hand, however, the insurrectionists and other terrorists have carried out violations of domestic and international law ranging to the brutal and grotesque.
With respect to actions by the Iraqi government, Iraqi law is not readily available electronically (itself perhaps raising questions about accountability and transparency). The Iraqi interim constitution, however, does bar the mistreatment of prisoners, make clear that government actors violating the law do not enjoy immunity from prosecution, and calls for the establishment of an independent commission to investigate human rights violations. The Geneva Convention most likely does not apply to Iraqi-on-Iraqi abuse, given the international aspect of the conflict, although the Hague Convention does require the U.S.-led alliance to help establish law and order. Interestingly, U.S. law may provide a U.S. forum to file suits against the Iraqi government for Iraqi-on-Iraqi human rights violations.
The Iraqi election, in part is about law. Democracy and rule of law are mutually reinforcing to begin with, but in this case one of the purposes of the Iraqi election to establish a democratically elected Iraqi government that in turn will draft a permanent Iraqi constitution. It will be interesting to see if the same human rights protections as in the interim constitution, including the call for an independent commission empowered to investigate government violations of human rights, will be included in the permanent Iraqi constitution.
Prohibitions against torture and mistreatment
The interim Iraqi constitution, termed the “Law of Administration for the State of Iraq for the Transitional Period,” provides a variety of guarantees outlawing the abuse of prisoners, starting with its preamble (which, unlike the preamble of the U.S. Constitution, is explicitly deemed a part of the applicable law created by the document):
The people of Iraq, striving to reclaim their freedom, which was usurped by the previous tyrannical regime, rejecting violence and coercion in all their forms, and particularly when used as instruments of governance, have determined that they shall hereafter remain a free people governed under the rule of law.
Law of administration for the State of Iraq for the Transitional Period, March 8, 2004, Peamble (emphasis added), http://www.cdi.org/news/law/Iraq-Constitution.htm.
Article 15 expressly prohibits torture and cruel, inhuman, or degrading treatment, recognizing the right to remain silent, to not be subjected to coercion to respond to questioning:
(E) The accused is innocent until proven guilty pursuant to law, and he likewise has the right to engage independent and competent counsel, to remain silent in response to questions addressed to him with no compulsion to testify for any reason …
* * *
(J) Torture in all its forms, physical or mental, shall be prohibited under all circumstances, as shall be cruel, inhuman, or degrading treatment. No confession made under compulsion, torture, or threat thereof shall be relied upon or admitted into evidence for any reason in any proceeding, whether criminal or otherwise.
Id., Article 15 (E),(J) (emphasis added).
Similarly, Article 12 guarantees the right to security of ones person, and to not be deprived of liberty without due process of law:
… Everyone has the right to life, liberty, and the security of his person. No one may be deprived of his life or liberty, except in accordance with legal procedures …
Id., Article 12 (emphasis added).
The interim Iraqi constitution remains in force during a constitutionally defined transition period until a new Iraqi government is elected under a permanent Iraqi constitution. That is, after the elections of Jan. 31, 2005, are held, the resulting national assembly is to draft a permanent constitution. Under that permanent constitution a future government will be elected, at which point the transition period is to be completed.
With the Iraqi interim constitution having recognized rights for detainees against mistreatment, the question remains how they are to be enforced.
Protecting prisoners against prosecution based on coercive interrogation
The Iraqi interim constitution provides, firstly, that coerced confessions are to be thrown out, a provision that presumably could be enforced by an Iraqi judge when hearing a case brought against an abused prisoner:
No confession made under compulsion, torture, or threat thereof shall be relied upon or admitted into evidence for any reason in any proceeding, whether criminal or otherwise.
Id., Article 15 (J).
Charges against police
In addition, should charges be brought against an employee or other agent of the government over prisoner abuse, the Iraqi interim constitution in Article 24 expressly waives any immunity the agent might have asserted:
No official or employee of the Iraqi Transitional Government shall enjoy immunity for criminal acts committed while in office.
Id., Article 24 (C).
The question remains, however, precisely how such charges would be defined, and which laws would apply. The Iraqi interim constitution envisions previous Iraqi law remaining in effect unless altered by the Iraqi transitional government, along with regulations issued by the now-defunct Coalition Provisional Authority.
(A) Except as otherwise provided in this Law, the laws in force in Iraq on 30 June 2004 shall remain in effect unless and until rescinded or amended by the Iraqi Transitional Government in accordance with this Law.
(B) Legislation issued by the federal legislative authority shall supersede any other legislation issued by any other legislative authority in the event that they contradict each other, except as provided in Article 54(B).
(C) The laws, regulations, orders, and directives issued by the Coalition Provisional Authority pursuant to its authority under international law shall remain in force until rescinded or amended by legislation duly enacted and having the force of law.
Id., Article 26.
National Commission for Human Rights
With respect to mechanisms of enforcement, of great interest is the Iraqi interim Constitution’s call for an independent National Commission for Human Rights satisfying the UN-recognized Paris Principles. The same provision envisions a human rights ombudsman having the power to investigate arbitrary or unlawful actions by Iraqi government officials or agents in response to a complaint or even on its own initiative in the absence of a formal complaint by the victim. Although Iraq has a human rights ministry, an independent commission of the type envisioned by the Iraqi interim Constitution does not yet seem to have been established, nor a human rights ombudsman.
Article 50 of the Iraqi interim constitution mandates:
The Iraqi Transitional Government shall establish a National Commission for Human Rights for the purpose of executing the commitments relative to the rights set forth in this Law and to examine complaints pertaining to violations of human rights. The Commission shall be established in accordance with the Paris Principles issued by the United Nations on the responsibilities of national institutions. This Commission shall include an Office of the Ombudsman to inquire into complaints. This office shall have the power to investigate, on its own initiative or on the basis of a complaint submitted to it, any allegation that the conduct of the governmental authorities is arbitrary or contrary to law.
Id., Article 50 (emphasis added).
It is not clear why this provision of the Iraqi interim Constitution has not been fulfilled, especially given that one of the primary arguments advanced by the Bush administration in support of U.S. military action in Iraq has been that of humanitarian intervention, to attempt to replace a brutal regime with a government that obeyed rule of law and respected basic human rights. Democracy and rule of law, of course, go hand-in-hand, and essential to both are mechanisms of checks and balances and accountability, to which the human rights commission envisioned by Article 50 potentially would seem to contribute strongly.
Under the Paris Principles referenced by the Iraqi interim constitution, an independent national human rights institution is to be:
- vested with competence to protect and promote human rights
- given as broad a mandate as possible set forth in a constitutional or legislative text
- have responsibility for any situation of human rights violations it decides to take up
- prepare reports on the national human rights situation as well as more specific matters
- draw government attention to situations in any part of the country where human rights are violated, make proposals for reforms, and be free to express an opinion on the positions and reactions of the government
- submit to the government and other competent bodies advisory opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights, including an examination of legislative or administrative provisions, and judicial organization, to ensure those provisions conform to fundamental principles of human rights
- ensure the harmonization of national legislation, regulations and practices with international human rights instruments to which the State is a party, and effective treaty implementation and ratification
- contribute to reports submitted to UN bodies and regional institutions pursuant to treaty obligations
- cooperate with the UN, regional institutions, and the national institutions of other countries dedicated to human rights
- assist in the formulation of educational and research programs for human rights
- use education and the media to raise public awareness
- be independent and have a pluralistic representation of civil society, including human rights NGO’s, trade unions, social and professional organizations such as lawyers, doctors, journalists and eminent scientists, the legislature and government agencies, universities and experts, philosophical and religious viewpoints
- be adequately funded and efficiently organized
- offer certain procedural protections when handling individual complaints
UN Office of the High Commissioner for Human Rights, "Fact Sheet No.19, National Institutions for the Promotion and Protection of Human Rights," April 1993, http://www.unhchr.ch/html/menu6/2/fs19.htm
Laws of War
The Geneva Convention Relative to the Protection of Civilian Persons (hereinafter GC-Civ) does not appear to apply to the treatment of Iraqi detainees by Iraqi police, as opposed to detentions by the United States of non-U.S. citizens. GC-Civ applies to military conflicts and occupations and GC-Civ Article 27 does, in part, provide the following:
Protected persons are entitled, in all circumstances, to respect for their persons…. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
GC-Civ, Article 27, Aug. 12, 1949, http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5
However, note that the reference is to “protected persons.” GC-Civ Article 4 expressly states that persons protected by it are those who fall into the hands of a detaining power of which they are not nationals:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Id., Article 4. Therefore Iraqis held by Iraqis would not necessarily fall within the application of the convention in the context of the U.S. occupation.
Common Article 3 (so called because it appears in all four Geneva Conventions), does provide for general standards of protection, in the case of a conflict that is not international, declaring in part:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
(1) Persons taking no active part in the hostilities, including … those placed hors de combat by … detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Id., Article 3.
As a result, there could be instances where, in the case of internal conflict, Iraqis held by other Iraqis could be covered by Article 3. In the present case it could be argued that the conflict in Iraq essentially has become an internal conflict. That line of thought would assert that the current Iraqi regime is putting down internal lawlessness with the help of U.S. and allied forces currently present in Iraq at the invitation of the current Iraqi government. At the same time, however, the U.S. occupation has been a consequence of the U.S. invasion, by definition international conflict. There also is an international aspect to the insurrection as well, given the involvement of foreign militants.
Another source of law governing the conduct of war, the Hague Conventions, may approach the matter from another angle, although one perhaps more relevant to the overall conduct of the U.S. occupation in Iraq rather than Iraqi-on-Iraqi abuse:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, Oct. 18, 1907
Whether the U.S. has developed adequate plans and committed adequate forces and resources to “restore … public order and safety” sufficient to honor its obligations under international law easily can be the subject of debate. Whether this provision’s applicability would include establishing order and lawfulness in how the Iraqi police conduct themselves might not be clear, although it would be difficult to suggest public order is being established if local police were themselves engaging in criminality and violent disorder.
An additional potential avenue of accountability for Iraqi-on-Iraqi abuse could be legal action brought in U.S. federal courts under the Alien Tort Claims Act (ATCA) or Torture Victims Protection Act.
The ATCA provides U.S. federal court jurisdiction over tort claims filed by aliens over violations of international law or a treaty of which the United States is a party:
Iraq rather than Iraqi-on-Iraqi abuse:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
The ATCA dates back to 1789, and since 1981 has been considered to provide jurisdiction over tort claims (a type of civil suit) for torture and similar human rights violations by agents of foreign governments for acts committed outside U.S. borders. It provides extraterritorial reach for U.S. federal courts to hear civil suits seeking damages for certain international crimes against the human person.
The Torture Victims Protection Act (TVPA) offers a similar basis for civil action for foreign human rights violations, except that it provides the right to U.S. citizens as well as foreign nationals, and is limited to cases of extrajudicial killings and torture. The TVPA helped provide federal law to complement the Convention Against Torture and was one of the sources of law considered in the “torture memo” drafted in 2002 by political appointees at the Department of Justice and recently replaced by a more moderate analysis.
One of the primary responsibilities of the newly elected Iraqi national assembly will be to draft a permanent constitution. Of special importance will be the promotion of human rights and the crafting of adequate safeguards and enforcement mechanisms, especially given allegations of human rights violations by security forces under the interim Iraqi government during U.S. occupation.
The interim Iraqi constitution, continuing in force during the period of transition, includes provisions promoting human rights and making it possible to prosecute government agents. However, the interim Iraqi government and U.S. occupiers have failed to implement a major provision of the interim Iraqi constitution to provide for a national human rights commission with independence and authority to take up allegations of human rights violations. The protection and promotion of human rights should be a high priority of the United States, especially given that humanitarian considerations have been cited as an important consideration in arguing that the Iraqi people and the world are better off because of regime change.
Beyond Iraqi law, while the Geneva Conventions most likely do not apply to Iraqi-on-Iraqi abuse, unless an argument can be made that the insurrection should be deemed an internal conflict, the Hague Conventions do require the United States and its allies, as foreign occupiers, to attempt to establish public order and public safety, and an argument should be made that that includes establishing a law-abiding police force. Ironically, U.S. courts may offer civil relief for human rights abuses carried out by Iraqi government agents, under the ATCA and TVPA.
Sources and further reading:
“IRAQ: Focus on creating a culture of human rights,” UN Office for the Coordination of Humanitarian Affairs, IRIN News.org, June 7, 2004, http://www.irinnews.org/fr/report/23741/iraq-focus-on-creating-a-culture-of-human-rights
Frederick L. Kirgis, Esq., “Alien Tort Claims Act Proceeding Against Robert Mugabe,” ASIL Insights, September 2000, http://www.asil.org/insights/insigh50.htm
Law of Administration for the State of Iraq for the Transitional Period (interim Iraqi constitution), March 8, 2004
Gideon Long, “Torture Still Routine in Iraqi Jails, Report Says,” Reuters, Jan. 25, 2005
“National institutions for the promotion and protection of human rights,” UN General Assembly Resolution 48/134, Dec. 20, 1993, http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/A.RES.48.134.En?Opendocument
“The New Iraq? Torture and ill-treatment of detainees in Iraqi custody,” Human Rights Watch, January 2005, http://www.hrw.org/reports/2005/iraq0105/
“The Present Situation of Human Rights in Iraq,” Report of the UN High Commissioner for Human Rights,” June 4, 2004
Dhiya Rasan and Steve Negus , “Iraqi torture of prisoners seen as open secret,” Financial Times, Jan. 25, 2005
Michael Ratner, "Civil Remedies for Gross Human Rights Violations," PBS, http://www.pbs.org/wnet/justice/law_background_torture.html (no date given)
Anthony J. Sebok, Esq., “Is the Alien Tort Claims Act a powerful human rights tool?,” CNN, http://www.cnn.com/2004/LAW/07/12/sebok.alien.tort.claims/
Doug Struck, “Torture in Iraq still routine, report says: Detainees beaten, shocked by Iraqi jailers, rights group finds,” Washington Post, Jan. 25
Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (U.S. 2004)
UN Office of the High Commissioner for Human Rights, "Fact Sheet No.19, National Institutions for the Promotion and Protection of Human Rights," April 1993, http://www.ohchr.org/Documents/Publications/FactSheet19en.pdf
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