Joseph Logan and Michael Wahid Hanna [Researcher, Middle East and North Africa division of Human Rights Watch; Program Officer at The Century Foundation]: "On January 1, 2009, the US-Iraq Status of Forces Agreement (SOFA) [text, PDF] will take effect, establishing a legal basis for the continuing US military presence in Iraq. The agreement also sets a framework for the drawdown of US forces – the issue, understandably, of greatest interest in the United States. But many of the agreement's provisions remain unclear, particularly for Iraqi and other detainees in US military custody.

Prior to the SOFA, the US and other members of the Multinational Force could detain persons in Iraq under the authority of Security Council Resolution 1546 and ensuing resolutions, which expire at the end of 2008. The SOFA acknowledges Iraqi jurisdiction over some 15,000 persons still in US military detention, and stipulates that US forces transfer custody of detainees to Iraqi authorities upon the request of the Iraqi government.

The implementation of this provision could conflict with US obligations under international law, specifically the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits state parties from turning over any individual to another state "where there are substantial grounds for believing that he would be in danger of being subjected to torture." In conducting research for the recent Human Rights Watch report on the Central Criminal Court of Iraq, we found credible allegations of torture and other mistreatment during initial detention and interrogation by Iraqi police and military forces. While no such incidents of abuse were documented following transfer of their cases of the Central Criminal Court, recent history and the multiplicity of detaining institutions demand that the US military heed the very real risk of torture in Iraqi custody.

US and Iraqi officials have indicated the transfer of jurisdiction over those detainees will not amount to immediate physical transfer. Both sides acknowledge Iraq's judicial system and detention facilities cannot now handle the cases they have, let alone an influx of new ones. The first stage of the effective transfer of jurisdiction would entail Iraqi review of the detainees' cases, with an eye toward possible criminal prosecution in Iraqi courts. It is as yet unclear how many cases will involve an assertion of physical custody, and when the Iraqi authorities could object to releases the US military may propose unilaterally. In fact, as with many other aspects of the SOFA, the actual mechanisms for initiating review, transfer or release have yet to be spelled out.

As that process of review unfolds, the obligation of the United States is unchanged: do not transfer detainees where they are in danger of being tortured. As a practical step toward meeting that obligation, the US government should verify conditions in Iraqi facilities that may receive detainees through regular and credible inspection of those facilities, in coordination with Iraqi authorities and impartial and independent international observers who report their findings publicly."