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.
