Status-of-forces agreement with Iraq must recognize detainee rights under international law

Joseph Logan [researcher, Middle East and North Africa Division, Human Rights Watch]: "In the debate over the Bush administration's push to wrap up a status-of-forces agreement and strategic pact with Iraq, there's a concerned party you aren't hearing about: the more than 20,000 Iraqis in US military detention.

The status-of-forces agreement now under negotiation would supersede the current U.N. Security Council resolution which expires at the end of the year and provides the Chapter VII mandate of US-led Multi-National Force-Iraq (MNF), including MNF detention in Iraq. This resolution provides the MNF authority to detain persons for "imperative reasons of security."

The US argues that these detainees should be treated in conformity with the Fourth Geneva Convention, which is applicable during military occupations. This interpretation of the Security Council resolution ignores the shift in the legal classification of the conflict with the declared end of the occupation in Iraq in 2004. Because the conflict in Iraq no longer concerns two opposing governments nor is an occupation, but is instead a fight by governments against an insurgency, the law on non-international armed conflict applies. During such conflicts, persons apprehended are to be treated in accordance with fundamental laws of war guarantees and international human rights law, but not the Fourth Geneva Convention as the US contends. This means at a minimum that detainees should be charged with a specific offense, be brought before an independent and impartial judge, and have access to a lawyer. The current US process for detainees does not meet these basic requirements.

Iraqis negotiating the status-of-forces agreement cite the goal of transferring to their authority much of the MNF detainee population - which the MNF itself has said it hopes to trim substantially through its expedited review and release procedures. No one, however, imagines a status-of-forces agreement bringing an end to the authority of a foreign military operating in Iraq to detain. Any agreement must reflect the commitment of both parties to upholding international law, including the elements of the International Covenant on Civil and Political Rights pertaining to the rights of persons in custody.

Critics of the proposed deal in Washington warn they won't be roped into an open-ended military commitment to Iraq. They should also reject the prospect of enshrining their country's status as a jailer operating outside international law on foreign soil."

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