Iraq is free of rape rooms and torture chambers.
– George W. Bush, remarks at the 2003 Republic National Committee Gala36
The Occupying Power must not arbitrarily detain a protected person, or willfully deprive such a person of basic due process. Yet mass arrests appear to be standard operating procedure for occupation forces in Iraq. Men unfortunate enough to be living, working, or walking in the immediate vicinity of an area targeted for house raids are liable to be bound, hooded, and detained.37 Of 43,000 Iraqis detained under the occupation, the International Committee of the Red Cross (ICRC) estimates that 70-90% have been innocent bystanders swept into detention in this unlawful manner.38 Once detained, Iraqi prisoners are not only denied minimal due process,39 but also held incommunicado for weeks and months without the knowledge of their families.40 Thousands of innocent people have been “disappeared” into a black hole of detention, where they face the prospect of harsh and abusive treatment, including torture.41 In addition, U.S. forces have held family members of wanted suspects as hostages, a practice that has been condemned as a war crime.42
The well-documented abuse of detained Iraqi prisoners—including murder, rape, sodomy, physical assault, and sexual humiliation43—clearly falls within the standard legal definition of torture, despite repeated denials by top U.S. officials like Secretary of Defense Donald Rumsfeld.44 Evidence for systemic torture was long known and covered up by the Bush Administration until the public release of incriminating photos and videotapes. Reports by the ICRC, human rights groups, and the Pentagon itself demonstrate that these violations are systemic not only in Iraq, but wherever the U.S. has established detention centers for alleged terrorist suspects.45 These acts of torture and abuse, far from being aberrations, are an inevitable outcome of a policy shift by the U.S government since 9/11 to employ torture as a method of interrogation,46 and to secretly transfer suspected terrorists to repressive countries in full knowledge that they will be brutally tortured.47
There is little prospect of accountability for crimes related to the occupation. The Bush Administration is seeking to avoid responsibility for the torture scandal and prosecute only low-level individuals in military courts.48 Iraqis themselves are prevented from bringing any war crimes cases against U.S. forces since Paul Bremer provided blanket immunity to all occupation authorities and military forces through CPA Order 17—an immunity which will continue even after the proposed “transfer of sovereignty.”49 Moreover, private contractors, who have been implicated in some of the worst torture cases, are totally unaccountable, shielded from prosecution in Iraqi and U.S. courts, and even military courts-martial.50 About 20,000 contractors—including mercenaries formerly employed by the militaries and intelligence agencies of states such as apartheid-era South Africa, Pinochet-era Chile, and Israel—are now operating freely in Iraq.51 The Senate Armed Services Committee reported in May 2004 that the number of contract security workers in Iraq “could more than triple over the next several months.”52
Legal Principles related to Unlawful Detention and Torture
- “Grave breaches… shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: …unlawful deportation or transfer or unlawful confinement of a protected person …willfully depriving a protected person of the rights of fair and regular trial… willful killing, torture or inhuman treatment… willfully causing great suffering or serious injury to body or health…” Geneva Convention IV, Art. 147
- “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” Universal Declaration of Human Rights, Art. 5
- “No one shall be subjected to arbitrary arrest, detention or exile” Universal Declaration of Human Rights, Art. 9
- “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…” International Covenant on Civil and Political Rights, Art. 7
- “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention” International Covenant on Civil and Political Rights, Art. 9
- The Convention Against Torture (ratified by the U.S. in November 1994)
36 White House press release, October 8, 2003. http://www.whitehouse.gov/news/releases/2003/10/20031008-9.html
37 Jeffrey Gettleman, “As U.S. Detains Iraqis, Families Plead for News,” New York Times, March 7, 2004.
38 Alexander G. Higgins, “Red Cross: Iraq Abuse Widespread, Routine,” Associated Press, May 11, 2004. http://www.fredericksburg.com/News/apmethods/apstory?urlfeed=D82G3F9G1.xml
39 United Nations press release, “UN Human Rights Expert Calls on Coalition Authorities to Allow Iraqi Detainees to Challenge Lawfulness of Detention,” May 5, 2004. http://www.un.org/News/Press/docs/2004/hr4742.doc.htm.
40 Ian Fisher, “Searing Uncertainty for Iraqis Missing Loved Ones”, New York Times, June 3, 2004.
41 Human Rights Watch, Iraq: US Treatment of Detainees Shrouded in Secrecy, April 22, 2004. http://hrw.org/english/docs/2004/04/21/iraq8477.htm.
42 Mohamad Bazzi, “U.S. using some Iraqis as bargaining chips,” Newsday, May 26, 2004. http://www.newsday.com/news/printedition/world/ny-woabus263819545may26,0,2416932.story?coll=ny-worldnews-print.
43 Maj. Gen. Antonio M. Taguba, Article 15-6 Investigation of the 800th Military Police Brigade (the “Taguba Report” on Treatment of Prisoners in Abu Ghraib prison), February 2004. http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html
44 Donald H. Rumsfeld, Defense Department Operational Update Briefing, May 4, 2004. Available at http://www.defenselink.mil/transcripts/2004/tr20040504-secdef1423.html.
45 Amnesty International, USA: Pattern of Brutality and Cruelty—War Crimes at Abu Ghraib, May 7, 2004. http://web.amnesty.org/library/index/ENGAMR510772004. Human Rights Watch, "U.S.: Systemic Abuse of Afghan Prisoners," May 13, 2004. http://hrw.org/english/docs/2004/05/13/afghan8577.htm. Amnesty International, "USA: Amnesty International calls for a commission of inquiry into 'war on terror' detentions," May 19, 2004. http://web.amnesty.org/library/Index/ENGAMR510872004?open&of=ENG-USA. Center for Constitutional Rights, "CCR Charges in Lawsuit that Government Illegally Withheld Information On Torture of Detainees in U.S. Custody," June 2, 2004. http://www.ccr-ny.org/v2/reports/report.asp?ObjID=UmaKNh6eJq&Content=379. John Barry, Michael Hirsh and Michael Isikoff, "The Roots of Torture: The road to Abu Ghraib began after 9/11, when Washington wrote new rules to fight a new kind of war," Newsweek, May 24, 2004. http://msnbc.msn.com/id/4989422/site/newsweek/; Don Van Natta, Jr., "Questioning Terror Suspects in a Dark and Surreal World," The New York Times, March 8, 2003. http://www.nytimes.com/2003/03/09/international/09DETA.html?ex=1086753600&en=f745b3305833e9c7&ei=5070; Molly Moore, "Villagers Released by American Troops Say They Were Beaten, Kept in 'Cage'," The Washington Post, February 11, 2002.
46 Jess Bravin, “Pentagon Report Set Framework For Use of Torture,” The Wall Street Journal, June 7. 2004. http://www.commondreams.org/cgi-bin/print.cgi?file=/headlines04/0607-01.htm. U.S. Air Force General Counsel Mary Walker et al., U.S. Defense Department Working Group Report on Detainee Interrogations in the Global War on Terrorism, March 6, 2003. Available at http://online.wsj.com/public/resources/documents/military_0604.pdf.
47 Dana Priest and Joe Stephens, “Secret World of U.S. Interrogation: Long History of Tactics in Overseas Prisons Is Coming to Light,” Washington Post, May 11, 2004. http://www.washingtonpost.com/wp-dyn/articles/A15981-2004May10.html. Reed Brody, “Prisoner abuse: What about the other secret U.S. prisons?” International Herald Tribune, May 4, 2004. http://hrw.org/english/docs/2004/05/04/usint8524.htm.
48 Mark Danner, "The Logic of Torture," The New York Review of Books, May 27, 2004. http://www.nybooks.com/articles/17190.
49 Kamal Ahmed, “Iraqis Lose Right to Sue Troops Over War Crimes,” The Observer, May 23, 2004. http://observer.guardian.co.uk/international/story/0,6903,1222817,00.html.
50 Adam Liptak, “Who Would Try Civilians of U.S.? No One In Iraq,” New York Times, May 26, 2004; Human Rights Watch, "U.S. Prisoner Abuse Sparks Concerns Over War Crimes: Investigation Should Probe Role of Superiors, Private Contractors," April 30, 2004. http://www.hrw.org/english/docs/2004/04/30/iraq8521.htm.
51 “Pentagon was warned in 2002 of contractors: abuse scandal includes use of private interrogators”, Associated Press, May 7, 2004. http://www.newsletters.newsweek.msnbc.com/id/4923442/
52 Scott Shane, “Chalabi raid adds scrutiny to use of U.S. contractors,” Baltimore Sun, May 30, 2004. http://www.baltimoresun.com/news/nationworld/bal-te.contractors30may30,0,6411461.story