Iraq post 28 June 2004: protecting persons deprived of freedom remains a priority
In view of the continuing hostilities in Iraq, the protection of persons deprived of freedom remains one of the ICRC's priorities. The ICRC's main objective is to visit all persons detained in connection with the hostilities in order to monitor whether their treatment, their conditions of detention and the judicial guarantees accorded correspond to the requirements of applicable law.
In order to determine what body of law applies to different categories of persons deprived of their freedom and what the legal obligations of the powers detaining them are the ICRC needs to continuously assess the situation on the ground.
After the hand-over of power from the Coalition Provisional Authority to the interim Iraqi Government on 28 June 2004, following the United Nations Security Council resolution 1546 stating the end of the foreign occupation, the legal situation has changed.
As stated in the resolution, the presence and the military operations of the Multinational Forces in Iraq are based on the consent of the Interim Government of Iraq. The ICRC therefore no longer considers the situation in Iraq to be that of an international armed conflict between the US-led coalition and the state of Iraq and covered by the Geneva Conventions of 1949 in their entirety. The current hostilities in Iraq between armed fighters on one hand opposing the Multinational Force (MNF-I) and/or the newly established authorities on the other, amount to a non-international armed conflict. This means that all parties including MNF-I are bound by Article 3 common to the four Geneva Conventions, and by customary rules applicable to non-international armed conflicts.
All parties must ensure at all times that those not or no longer taking part in the fighting – including persons deprived of their freedom in connection with the continuing hostilities - are protected in accordance with these rules.
The change in the legal situation means that most persons deprived of their freedom in relation to the hostilities are now no longer protected by the whole of the Third or Fourth Geneva Convention but by common Article 3 of the Geneva Conventions and by c ustomary rules applicable in non-international armed conflicts. It has the following implications for persons deprived of their freedom:
Those persons arrested before 28 June and currently interned by the MNF-I should either be released, charged and tried or placed within another legal framework that regulates their continued internment. They remain protected by the Third Geneva Convention – for prisoners of war - or the Fourth Geneva Convention - for interned and detained civilians - until they are released or handed over to Iraqi authorities.
Persons arrested prior to 28 June who have been handed over to Iraqi authorities and continue to be detained in connection with the ongoing non-international armed conflict are protected by Article 3 common to the Geneva Conventions, and customary rules applicable to non-international armed conflicts; other applicable international law and relevant Iraqi law would apply to them as well. The same rules apply to persons arrested since 28 June 2004 by Iraqi authorities or the MNF-I in connection with the ongoing non-international armed conflict.
Persons arrested prior to 28 June, handed over to the Iraqi authorities and then detained for reasons unrelated to the now ongoing non-international armed conflict are protected by Iraqi law and other applicable international law, e.g. human rights law, but no longer by international humanitarian law.
Persons arrested and detained by Iraqi authorities since 28 June for reasons unrelated to the ongoing non-international conflict are protected by Iraqi law and other applicable international law, e.g. human rights law, but no longer by international humanitarian law.
Regardless of their status, charges against any detainee or internee are to be properly investiga ted. They can be prosecuted and, if proven guilty, sentenced. Whatever the crimes committed, they have the right to a fair trial, including the right to defend themselves and to be assisted by a lawyer.
ICRC continues to visit thousands of people deprived of freedom and detained by the MNF-I. It plans to also visit detainees held by Iraqi authorities in connection with the internal armed conflict underway. However, its ability to do so depends on the security situation on the ground.