§52. Willful killing, torture or inhuman treatment, if committed against detainees protected by international humanitarian law constitute a grave breach under the Geneva Conventions and therefore of international humanitarian law and is prohibited at any time, irrespective of the status of the person detained. The above-described acts might be designated as war crimes by a competent tribunal. The requirement that protected persons must at all times be humanly treated is a basic pillar of the Geneva Conventions. The detaining authorities are bound to put in place all those measures that may pre-empt the perpetration of torture as well as any inhuman and degrading treatment. All State Parties are obliged to exercise jurisdiction to investigate, prosecute and punish perpetrators.
§116. In addition, reports mention the occurrence of cases where Coalition Forces have detained family members of alleged “insurgents” in order to compel their cooperation and exert pressure on the “insurgents”; where Coalition Forces have allegedly destroyed the houses of families of “insurgents” and the crops and houses in a given area as a retaliation for attacks by “insurgents” against Coalition Forces in that area. It should be emphasized in this respect that under International Humanitarian Law, occupation forces are prohibited from carrying out reprisals and collective penalties against civilians and from taking hostages, which acts are considered as war crimes.
(footnotes omitted)
***The heart of the matter is Section IV,
The treatment of persons during arrest, detention and release from detention. Ramcharan cites the IRCR Report (
http://www.mindfully.org/Reform/2004/Iraq-Prisoner-ICRC1feb04.htm ) and the
Taguba Report (in footnotes, AI is mentioned
Memorandum on concerns relating to law and order). Section D covers human rights law. I reproduce that section with one footnote (the others seem pedestrian to me at the moment).
D. The legal framework
1. International humanitarian law
§50. The situation in Iraq involves a military occupation to which international humanitarian law as well as The Hague Regulations of 1907 are applicable. Both the Third and the Fourth Geneva Convention are applicable to the conflict. The United States of America ratified the Geneva Conventions of 1949 on 2 August 1955. The vast majority of POW and civilian internees captured during major military operations have since been released. In case of doubt about the status of an individual, a detainee’s case has to be considered by a competent tribunal as required by Art. 5 Third Geneva Convention. Those individuals who commit criminal offences in Iraq, including those suspected of anti-Coalition activities, are normally detained as “criminal detainees”. Those held by the Coalition Forces fall within a process that requires a probable cause determination by a military attorney within 21 days of every detention. The Coalition Forces provide a second procedure that demands that the criminal detainee be brought before a judge as soon as possible and in no instance later than 90 days from the date of detention. A criminal detainee has to be distinguished from a civilian internee who has not been guilty of any infringement of the penal provisions enacted by the Coalition Forces, but has been detained for “imperative reasons of security”. There has to be an individualized decision which links the detainee to a threat of security. According to the Commentary to the Fourth Geneva Convention “there can be no question of taking collective measure: each case must be decided separately”. As a procedural safeguard in order to ensure that principles of humanity are respected, a security detainee should have the right of appeal and any decision upholding detention should be reviewed every six months.
§51. The use of torture and other forms of physical and psychological coercion against any detainee to extract confessions of intelligence related information is a violation of international humanitarian law1 and is prohibited. According to the Third (Art. 17, 87, 99) and the Fourth Geneva Convention (Art. 5, 31, 32), evidence that has been obtained through coercion can never be used as such by the Coalition Forces.
§52. Willful killing, torture or inhuman treatment, if committed against detainees protected by international humanitarian law constitute a grave breach under the Geneva Conventions and therefore of international humanitarian law and is prohibited at any time, irrespective of the status of the person detained. The above-described acts might be designated as war crimes by a competent tribunal.* The requirement that protected persons must at all times be humanly treated is a basic pillar of the Geneva Conventions. The detaining authorities are bound to put in place all those measures that may pre-empt the perpetration of torture as well as any inhuman and degrading treatment. All State Parties are obliged to exercise jurisdiction to investigate, prosecute and punish perpetrators.
2. International human rights law
§53. The prohibition of torture laid down in international humanitarian law with regard to situations of armed conflict is reinforced by the body of international treaty law on human rights. These laws ban torture both in time of peace and armed conflict.
§54. Any practice of torture or other cruel, inhumane or degrading treatment or punishment violates international human rights standards to which both the US and UK are a party, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). There is an absolute prohibition of torture applicable in times of conflict as well as in times of peace. CAT defines torture as any act that is intentional, that causes severe pain or suffering, that is used to obtain information or confession, to punish, intimidate or coerce, and that has been authorized by someone in an official position. In addition to article 7 of the ICCPR, which prohibits torture and cruel, inhuman or degrading treatment or punishment, article 10 of the ICCPR specifically provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
*Notably, under international law, “inhuman treatment” includes “not only acts such as torture and intentionally causing great suffering or inflicting serious injury to body, mind or health but also extends to other acts contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity”. Similarly, “willfully causing great suffering or serious injury to body or health includes injury to mental health and includes those acts which do not fulfill the conditions set for the characterization of torture, even though acts of torture may also fit the definition given”; Kemal Mehinovic, et al., v. Nikola Vuckovic, a/k/A Nikola Nikolac, US District Court for the Northern District of Georgia, Atlanta Division, 198 F. Supp. 2d 1322; 2002 US Dist. April 29, 2002.
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