After The Fact
by Nyier Abdou
With the war in Iraq drawing to a close, attention has turned to the thousands of Iraqis detained during the conflict. Nyier Abdou looks at the legal status of Iraqi prisoners of war.
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Few questioned whether the US could win the war in Iraq. Many ask, however, if it can win the peace. With the end of large-scale military operations in Iraq, the US must now begin to unravel the legal issues that surround the prisoners detained in camps there.
Unlike the US-led military campaign in Afghanistan, all prisoners taken during the Iraqi conflict are considered prisoners of war (PoWs). This decision plants US military legal teams in the terra firma of the 1949 Geneva Conventions - the primary text of the so-called laws of war. This is territory the US controversially circumvented with regard to suspected Al-Qa'eda and Taliban fighters captured during the war in Afghanistan, who were deemed "unlawful combatants" and rendered to a prison facility on the US military base at Guantànamo Bay, Cuba.
As PoWs, Iraqis in US custody are granted considerable rights under the Geneva Conventions. PoWs are not required to offer any information other than their name, rank, serial number and date of birth, and are entitled to the same legal proceedings that would be used for US soldiers.
The choice to name Iraqi detainees PoWs was a significant departure from the much-debated refusal to offer PoW status to the Afghani detainees. It has been noted that this distinction lies in the fact that the US faced a "traditional" military in Iraq, while the fighters detained in Afghanistan were part of an "unconventional" grouping. Many, however, feel that the decision was largely motivated by other factors, namely concern about treatment of US PoWs and the questions that continue to be raised over the nebulous legal status of the Guantànamo prisoners.
"While we cannot know for sure why the Bush administration rejected important provisions of the Geneva Conventions relating to PoWs during the Afghan war, it appears to have been a political rather than a legal decision," suggests James Ross, senior legal advisor for the New York-based Human Rights Watch (HRW). "The administration did not want to confer PoW status on persons they had stated publicly were terrorists. We now know of course that many of the persons detained at Guantànamo were Taliban soldiers and others who had no connection to Al-Qa'eda."
Ross notes that it was not only human rights groups who criticised this decision, but also lawyers within the US military, which he says has, "long recognised that adherence to international law regarding the treatment of prisoners ultimately benefits US soldiers captured in combat". Pressure from the US military, says Ross, was probably a key factor in ensuring that captured Iraqis were treated in accordance with the Geneva Conventions.
At the height of the US campaign, the US and UK were holding some 8,000 PoWs. This stands in stark contrast to Operation Desert Storm, in 1991, when the US-led coalition detained a staggering 86,743 Iraqi PoWs. The trend over the last two weeks has been to release detainees determined to have been either "non-combatants" or low-level military, who are not suspected of war crimes. As this vetting process continues, it will presumably isolate prisoners who are considered dangerous and those believed to be valuable in terms of intelligence, including high-level figures in Iraqi leader Saddam Hussein's government.
The US has indicated that all Iraqi detainees are officially PoWs until a US tribunal - the crucial "competent tribunal" called for under Article 5 of the Third Geneva Convention that has not been conducted for the Guantànamo detainees - establishes otherwise. This tribunal, made up of three US military officers, began examining individual cases on 19 April, coinciding with the release of some 900 prisoners determined to be civilians.
According to Donald G Rehkopf Jr, co-chair of the Military Law Committee at the US-based National Association of Criminal Defence Lawyers (NACDL), approximately 1,400 of these "hearings" were conducted by the US after the first Gulf War. The tribunal was made up of one lawyer "judge advocate" and two additional officers. The majority of these "Article 5 hearings" found that the detainee was not a combatant and ordered his release. Asked whether these trials met the criteria of being a "competent tribunal", Rehkopf answered that the US position was that since military officers would try US military members for any alleged war crimes, "as long as [Iraqi PoWs] were given the same treatment members of the detaining country got, this was sufficiently 'independent'".
Similar hearings have also taken place during other US conflicts, notes Elisa Massimino, director of the Washington office at the Lawyers Committee for Human Rights (LCHR). But she added that the LCHR has heard reports that the US "may not have prepared sufficiently, with personnel and the like, to conduct these hearings in Iraq. There has been very little public information about this". This would explain the extremely slow pace at which the US hearings have unfolded.
In a briefing on 25 April, US Defence Secretary Donald Rumsfeld said that an estimated 100 prisoners were being released daily. He also dismissed rumours that some prisoners would be transferred to the military facility in Guantànamo. Another 200 prisoners were released on Sunday from Camp Bucca, near the southern port of Umm Qasr, leaving an estimated 5,800 PoWs still in military custody.
The US tribunal sorts prisoners into two categories: PoWs - those members of the military who fought in uniform or non-military combatants determined to have legally taken part in the conflict - and illegal combatants, such as soldiers masquerading as civilians or the infamous Fedayeen Saddam, the paramilitary unit loyal to Saddam Hussein controlled by his son Qusay. HRW's Ross points out that the term "illegal combatant" is not actually found in the 1949 Geneva Conventions, "but the concept is part of customary humanitarian law".
In most cases, says Ross, these prisoners would still be considered "protected persons" under the Fourth Geneva Convention. "Foreign fedayeen might not be entitled to either PoW or protected person status, but they must still be treated humanely and prosecuted in accordance with international fair trial standards," he added.
PoWs are entitled to "fair trial" rights under the Third Geneva Convention, meaning that they must be tried in the same way that US military personnel accused of war crimes would be tried. Under international law, "guerrillas" or "non-affiliated partisans" would not be entitled to the "protected" status awarded to PoWs. An Iraqi soldier engaged in combat who kills a coalition soldier is considered to have done so legally. A person who is not a "privileged combatant", as the LCHR's Massimino notes, would have committed a crime "and can be prosecuted for that".
How prisoners charged with war crimes, or crimes against humanity, will be tried remains undecided, and it is here that the US must choose its course carefully. There have been indications that the US wants to try Iraqi officials charged with human rights abuses or war crimes against Iraqis within Iraq. There are legal precedents for this, notes the NACDL's Rehkopf, "but not necessarily good ones". The terms of the armistice that ended the First World War called on Germany to prosecute certain nationals accused of war crimes. But, says, Rehkopf, "The results were unsatisfactory to the West, so that greatly impacted the decision to use an international tribunal after WWII".
HRW has expressed concerns about an Iraqi tribunal. Ross says that the organisation's position is that an international tribunal, with Iraqi participation, would better address past war crimes and crimes against humanity. For prisoners charged with "crimes against Americans", the US could either try them under the standard "court-martial" setting used for trying US military members under the Uniform Code of Military Justice or through a "military commission" along the lines authorised under the Military Order issued by US President George W Bush on 14 November.
Until the Nuremberg and Tokyo tribunals that followed Second World War, says Rehkopf, US military procedure was to try those over whom a court-martial did not have "jurisdiction", such as foreign military members, by military commission. "But they used the same procedures and rules that we used in our general courts-martial," he adds.
The LCHR's Massimino underscores a crucial difference between a court martial and the new military commissions, which do not afford defendants the rights US soldiers would have if they were tried. "The military commission rules do not satisfy fair trial requirements," she says. "Among other problems, there is no appeal outside the chain of command".
"Courts martial are properly constituted military tribunals which provide strong safeguards of competence and fairness," agrees Claudio Cordone, senior director for international law at the London-based Amnesty International. "Military commissions are not proper tribunals. They are administrative bodies lacking fundamental safeguards of independence and fairness". Cordone added that Amnesty has called on the US to rescind the presidential decree that provided for the formation of the military commissions. "Interestingly," he notes, "so far, to our knowledge, they have not been used".
Rehkopf suggests that the "better international process" would be to bring the cases before the newly established International Criminal Court (ICC), but this is highly unlikely given that the US actively worked to stymie the formation of the court. Beyond this, Iraq itself is not a party to the ICC charter either. Any case that comes before the court must have taken place in a country that is a signatory, so talk of a role for the ICC is largely misguided.
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– Nyier H Abdou
Nyier H Abdou
Al-Ahram Weekly
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This article was first run on Al-Ahram Weekly
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