Global Policy Forum

By Human Rights Watch

April 28, 2008

Letter to the Security Council

Your Excellency:

Human Rights Watch is writing in advance of your debate on Iraq and briefing on the United Nations Assistance Mission in Iraq (UNAMI) and the Multi-National Force-Iraq (MNF). We urge you to take this occasion to address serious concerns regarding MNF detention practices, particularly respect for the rights of persons deprived of their liberty under international human rights law. As the MNF has invoked Security Council resolutions as the basis for its detention practices, we believe the Security Council must scrutinize those practices and do its utmost to assure that they conform to internationally recognized norms.

According to UNAMI's most recent human rights report, MNF held at least 24,514 detainees by the end of 2007. Human Rights Watch shares UNAMI's concern that many of these detainees are held for lengthy periods without judicial review and under review processes that fall short of international standards of due process.

UNAMI cited correspondence with the US embassy in Baghdad to the effect that internationally recognized standards of due process are inapplicable to MNF security detentions in Iraq. Letters attached to Security Council resolutions 1546, 1637 and 1723 allow for "internment where this is necessary for imperative reasons of security." The United States has maintained that this language, which mimics language in the Fourth Geneva Convention, is the basis for the MNF applying the Fourth Geneva Convention more generally to the treatment of detainees in Iraq.

This expansive reading of resolution 1546 is contrary to the requirement under international law to interpret Security Council resolutions as being consistent with existing international norms. The Fourth Geneva Convention has not been applicable to Iraq since the declared end of the belligerent occupation. The detention of individuals pursuant to resolution 1546 and successive resolutions must be read in light of the currently applicable international law in Iraq.

Since the conclusion of the inter-state armed conflict between Iraq and the states of the MNF in 2003, and the declared end of the belligerent occupation in June 2004, the continuing hostilities in Iraq are considered to be a non-international (internal) armed conflict. During such a conflict, the applicable rules for the treatment of persons in custody are found in article 3 common to the Geneva Conventions and international human rights law.

The International Covenant on Civil and Political Rights, which Iraq ratified in 1971, contains provisions on the treatment of persons deprived of their liberty. It requires that all persons arrested be brought promptly before a judge; have access to legal counsel and family members; be charged with a cognizable criminal offense and receive a prompt trial meeting international fair trial standards.

The revised MNF review procedures described in UNAMI's report, though they have facilitated the processing of cases, do not address fundamental concerns about the rights of detainees to counsel or to challenge the basis of their detention, among other fundamental rights. Human Rights Watch calls on the Security Council to insist that, for the duration and under the terms of its mandate, the MNF's detention regime adhere to the requirements of international human rights law for the treatment of detainees.

Further, and in light of past abuses from which the MNF seeks to distance itself, the MNF should make its detention facilities accessible to independent Iraqi and international human rights observers. Such access, in order to be credible, would require unhindered and confidential contact with detainees. The Security Council should also press for the implementation of UNAMI's own recommendations to grant such access to UNAMI and independent monitors who make their findings public.

Finally, Human Rights Watch notes the stated intention of the US and Iraqi governments to conclude a status-of-forces agreement and other pacts that would replace the Chapter VII mandate for the presence of the MNF. The Security Council should establish its concern that any future provisions establishing a legal basis for detention by non-Iraqi armed forces should reflect the commitments of both parties to an agreement that meets the obligations of international law, specifically the International Covenant on Civil and Political Rights.

Thank you for your attention to these matters. We would welcome any request for additional information regarding our concerns over detainee treatment in Iraq.

Yours sincerely,

Sarah Leah Whitson
Executive Director
Middle East and North Africa division