*with Zainab Mineeia
An estimated 17,000 Iraqis detained in their own
country by occupying US forces may soon face transfer into an Iraqi government
detention system where reports of abuse and torture are commonplace, says a
leading human rights advocacy group.
A Human Rights Watch (HRW) statement Wednesday focuses on the potential for
detainee transfers according to the stipulations of the US-Iraqi security
deal, a draft of which is currently before Iraq's cabinet and parliament for
approval. There are reports this week that the cabinet has decided to reopen
negotiations on some aspects.
"Human Rights Watch called on the US government to ensure that detainees
are not in danger of being tortured by establishing a mechanism that would provide
each detainee with a genuine opportunity to contest a transfer to Iraqi custody,
and by verifying the conditions of Iraqi detention facilities to which they
could be transferred, through inspections whose results are made public,"
said the statement.
HRW's statement points to the fact that such a mechanism, or at least something
which accomplishes the same check on transfers, is required by international
law both in the laws of armed conflicts, as codified for prisoners of war in
the Geneva Conventions, and the UN Convention Against Torture, which was signed
and ratified by the US.
It is illegal to transfer a prisoner into a situation where they face a credible
risk of torture or abuse.
The controversial US-Iraqi security pact, known as a Status of Forces Agreement
(SOFA), is being designed to allow US forces to wage war in Iraq after the
UN mandate under which they currently operate expires at the end of this year.
But the SOFA, which was originally scheduled for completion this summer, has
been bogged down by US reluctance to give in to the ever increasing demands
of Iraqi authorities emboldened by their successes in passing legislation and
suppressing what had, until this year, been a persistent insurgency.
Two of the provisions deal with Iraqis currently being detained by the US
"We're getting out of the detention business," Brig. Gen. David Perkins,
a spokesman for the US-led forces in Iraq, told the New York Times this week.
The detention of Iraqis has been a public relations disaster for the US occupation,
particularly after the Abu Ghraib scandal, where photos of prisoner abuse ended
up in the media, causing global outrage.
"I know that the US has an interest in getting the detainees off their
hands, and I know that Iraqis want to have detention powers," the executive
director of HRW's Middle East and North Africa Division, Sarah Leah Whitson,
told IPS. "I also know that [the Iraqi authorities] don't feel equipped
[to deal with a flood of detainees]."
Those ambiguities, said Whitson, are apparent in the vague text of the current
SOFA draft, where the two provisions dealing with detainees contradict each
"I would say that [the detainee issue] is not consistently addressed in
the security agreement," Whitson told IPS. "In the current agreement,
[the US] is supposed to release the detainees. But in another part of the
agreement, they're supposed to transfer the detainees."
It's not clear which of the provisions apply under what circumstances. Whitson
says inconsistencies should be concretely cleared up, though it is not of central
importance to HRW.
"Per se, it doesn't matter who is detaining [Iraqis] or who has the right
to detain them," Whitson said, "but how they are being treated wherever
they are being detained."
"There is a really serious risk of torture and abuse of detainees,"
In a 2005 report from HRW, nearly every interviewed prisoner in the Iraqi detention
system, regardless of whether they were common criminals or anti-government
insurgents, complained about some kind of maltreatment.
"It's an ongoing problem and I don't think you'd find the Iraqi government
denying that there's a problem in the Iraqi detention system," Whitson
Because of the secrecy of the military reviews that give a shaky legal justification
to the detentions, little about the charges against detainees are known. But
it is widely assumed that many of those in US custody ended up there because
they were anti-government insurgents or anti-US fighters.
Because of this, the freeing of detainees, when it should arise, has struck
fear into some of Iraq's politicians.
"The draft security pact says that the Americans will release all the
detainees from their bases as soon as the pact is signed, which means they'll
release criminals from Qaeda and militants," said Haider Al-Abbadi, a senior
politician in Iraqi Prime Minister Nouri al-Maliki's Dawa party, according to
the New York Times.
Sectarian rifts could play into both this calculation as well as the potential
for harm to prisoners transferred into Iraqi custody.
Many of the former insurgent fighters detained by the US are likely to be
Sunnis, who made up the bulk of the anti-government forces. But the deep-seated
resentment of Sunnis, who were the minority ruling sect under the former dictatorship
of Pres. Saddam Hussein, by Shias, who now dominate the central government and
control most ministries, could potentially lead to harsh conditions for Sunni
While the transfer of current detainees is unclear in the SOFA, one change
that appears likely to make it through this draft states that the US will
no longer be able to detain suspected insurgents for more than 24 hours.
At the peak of detention by US forces in the fall of 2007, some 26,000 Iraqis
were being held. Two thousand of the 17,000 still in custody are set to be released
In the same statement, HRW also took the opportunity to address another issue
in the SOFA -- the authority to prosecute those responsible for abuses, potentially
including US forces and contractors.
"Human Rights Watch called on the Iraqi and US governments to ensure
that whatever form a security agreement may take," the statement said,
"it will not allow a legal vacuum in dealing with military personnel and
contractors who commit abuses."
(Inter Press Service)