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May 16, 2004

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International law and mistreatment of Iraqi inmates

Barrister Harun ur Rashid

The brutal, blatant and wanton abuses and torture of Iraqi prisoners of war are a blot on human civilisation. They demonstrate the depraved mental make-up of US and British soldiers in treating the Iraqi inmates. They are unabashedly shameful, shocking and grossly contravene rules of international law.

From legal aspects, there are four issues that are involved.
--Who are the occupying powers in Iraq?
--Who are the prisoners of war?
--What are the rules of international law in respect to prisoners of war?
--What is the legal definition of "Torture" under international law?
Let us briefly examine all these issues in the following paragraphs.

Occupying Powers in Iraq
Although US-Britain invaded Iraq without UN approval, the UN Security Council subsequently recognised the removal of the Saddam Hussein regime as a fait accompli. The Council recognised the reality on the ground and adopted two Security Council resolutions last year to give legal status to the US and British forces in Iraq.

The resolution 1483 of the Council recognised the US-Britain as " Occupying Powers" in Iraq. The other resolution was 1511, adopted last October, that provided legitimacy to the US-led stablisation force in Iraq. However, at no point of time, the UN Security Council created a UN multi-national peacekeeping or peacemaking force with the famous "blue helmets" in Iraq.

Occupying power has a legal connotation under the 1949 Geneva Convention on Armed Conflicts. The occupying power is the one that invades and occupies a sovereign country. Article 4 of all the 1949 Geneva Conventions provides the definition of the occupying power and states as follows :

" Persons protected by the Convention are those who at a given moment and in any manner whatsoever, find themselves in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals."

Accordingly, the US and Britain are considered as the occupying powers in Iraq. Likewise, since 1967 Israel has been the occupying power of Palestinian lands (West Bank and Gaza Strip). The Britain and US have a responsibility to fulfill in the occupied territory. The legal obligations are onerous and are subject to the supervision of the Geneva-based International Committee of Red Cross (ICRC).

Who are Prisoners of war?
The Third Geneva Convention is applicable to the prisoners of war. This Convention lists the categories of persons who are to be considered as prisoners of war. Ordinarily such status is granted to members of forces that surrender to the victorious party.

In 1971, Pakistani armed personnel who surrendered in Dhaka on 16th December were given the status of prisoners of war. The prisoners of war are to be looked after humanely because the personnel of armed forces fight for their country under orders of the political and military leaders. They do not fight for any personal benefit. They are not criminals or thugs or terrorists and their status is different from these categories of individuals.

The fundamental difference between army personnel and Al-Quada terrorists is that while the former fight under orders of the authority of states, the latter do not fight or represent any state. Terrorists are "non-state entities" and are widely believed to spread over 60 countries. The "terrorists" captured from Afghanistan by the US after the fall of the Taliban regime were not accorded the status of prisoners of war by the US in the military base of Guantanamo Bay in Cuba. They are described as "enemy combatants" by the US.

The treatment of Iraqi inmates is a different ball game from that of inmates of Guantanamo Bay. The US and Britain are the occupying powers in Iraq and they are legally obliged to treat Iraqi captives as prisoners of war who are to be scrupulously treated under the Third Geneva Convention.

Rules of Treatment for Prisoners of War under the 1949 Third Geneva Convention
Defeated or captured Iraqi army personnel are to be given the status of prisoners of war. The rules of the Third Geneva Convention are to be strictly followed in treating them in captivity. Some of the salient features of the treatment of prisoners of war under the Convention are given below:

(a) Prisoners of war should be kept in safety zones. The zones must be clean and be suitable for human habitation.

(b) Adequate clothing and other basic facilities must be provided. Food must of such quantity and quality to ensure good health of the prisoners of war.

(c) Prisoners of war must be treated with personal dignity. Hardships and sufferings must not be caused to prisoners of war.

(d) Prisoners of war must be given a monthly allowance by occupying powers and if they work in camps, they must be paid.

(e) Prisoners of war are entitled to receive visits from representatives of the ICRC. They are entitled to receive letters and cards from their relatives.

(f) At all time prisoners of war must be treated humanely.

The US and Britain are legally obliged to adhere to the above rules of the Convention toward Iraqi prisoners of war. The images printed in the media of the Iraqi prisoners show humiliation, indignity, and suffering of Iraqi inmates at the hands of some US and British soldiers. In particular the treatment meted out to Iraqis by some US soldiers is sadistic, brutal and barbaric. The fact is that such cruel behaviour by a section of US soldiers defies human comprehension and conscience. It speaks of a gross failure of chain of command from the Pentagon in respect of compliance of the core provisions of the Third Geneva Convention.

Definition of torture under international law
One of the most important instruments on human rights is the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It came into force in 1987. The Convention is an additional safety valve for prisoners of war.

The provisions of the 1984 Convention derive from the inherent dignity of the human person and are consistent with Article 5 of the 1948 Universal Declaration of Human Rights and Article 7 of the 1966 International Covenant on Civil and Political Rights, both of which provide that no one should be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.

Let us at present examine only two Articles of the 1984 Convention that are relevant for our purpose.

The expression "Torture" has been defined in Article 1 of the 1984 Convention and it states in part as follows: " The term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession."

Article 2 of the Convention provides: " No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture".

The two provisions make it abundantly clear that not only torture but also other cruel or inhuman or degrading treatment or punishment is not legally permissible and each state party shall take effective legislative, administrative and judicial or other measures to prevent acts of torture in any territory under its jurisdiction. All acts of torture are to be considered offences under criminal law and this applies not only to the person who inflicts torture but also to any person who is involved in complicity in torture.

Some of the graphic pictures of Iraqi inmates from the Abu Ghraib prison in Baghdad in the media display acts of deliberate physical and mental suffering, (e.g. using dogs to threaten and attack a naked male Iraqi prisoner or a female US soldier smiling cockily at the camera as she points out at a group standing naked Iraqi prisoners). These would arguably be considered as torture.

Both the US and Britain are signatories to the UN Convention of Torture. They failed to comply with the provisions of the 1984 Torture Convention. Furthermore one of the stated justifications of Iraqi war was to remove the tyranny of Saddam Hussein. For Iraqi inmates and for majority of Iraqi people, one brutal regime has gone and another similar regime has come into place in Iraq led by the US.

Concluding remarks
It may be easily argued that the pictures released in the media until the time of writing are in breach of both the 1949 Geneva Conventions and the 1984 Torture Convention. The soldiers who have committed such gross abuse and torture are punishable under national and international law. Since the US has withdrawn from the jurisdiction of the International Criminal Court, the suspected culprits will not face trial by international judges, if national trials do not meet international standards of justice.

Furthermore, it is impossible to discuss the serious violations of international law without having some regard to the environment within which such breaches occurred. The word "environment" here is not only intended to convey the atmosphere that have been created in the minds of the US British soldiers about Iraq's complicity in the September 11 attacks but also is designed to perceive Iraqi inmates as inferior human beings. Under such circumstances, Iraqi prisoners have been subjected to torture, inhuman treatment.

Many international law experts believe that the UN should deplore both the US and Britain for their callous regard of their commitment to protect human rights of Iraqi inmates under international law. Failure to protect human rights of Iraqis brings to my mind what the Greek philosopher of sixth century BC Anarcharsis wrote: " Laws are like cobwebs, strong enough to detain only the weak and too weak to hold the strong".

Barrister Harun ur Rashid is former Bangladesh Ambassador to the UN, Geneva.

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