Amnesty International – 2010-09-14 22:53:04

http://www.amnesty.org/en/library/info/MDE14/006/2010/en

INTRODUCTION

“One of the major human rights challenges [in Iraq] remains the detention of thousands of persons without due process…”
— Former UN Secretary General Kofi Annan

More than seven years after the US-led invasion of Iraq in March 2003, the human rights situation remains dire. Despite some security improvements in the last couple of years, violence rages on and scores of Iraqis are being killed every month as a result.

Since 2003 armed groups opposed to the Iraqi government and the presence of US forces in the country have been responsible for gross human rights abuses amounting to war crimes and crimes against humanity. They have targeted civilians and attacked indiscriminately, killing thousands of civilians, mostly in suicide bomb attacks in busy public places.

They have also kidnapped, tortured and killed thousands of others. US and Iraqi forces have also committed grave human rights violations. They have tortured or otherwise ill-treated many prisoners, some of whom have died as a result. They have killed civilians in raids on houses, at checkpoints and during armed clashes. They have destroyed the houses and other property of Iraqis.

The focus of this report is the unlawful detention, enforced disappearance and torture or other ill-treatment of thousands of people since 2003 by the US-led Multinational Force (MNF) in Iraq and the Iraqi authorities. Some have been held arbitrarily, without charge or trial, for seven years.

Some remain held even though Iraqi courts or investigative judges have ordered their release for lack of evidence or adequate grounds to imprison them. Thousands are still in prison despite the 2008 Amnesty Law, which provides for the release of uncharged detainees after six or 12 months depending on the case.

Many of these detainees have been tortured or ill-treated in the initial period of their detention when they were held incommunicado. Most have had no access to legal representation and some have not had visits from relatives. In some cases, families spent months trying to find out where their detained relatives were held.

The vast majority of detainees are Sunni Arabs from central, western and north-western Iraq, held on suspicion of involvement in or supporting the Sunni armed groups that have led the fight against Iraqi government and US forces. However, many hundreds are Shi’a Muslims suspected of supporting the al-Mahdi Army — followers of the religious figure Muqtada al-Sadr– who until recently engaged in armed activities against Iraqi and US forces, mainly in Baghdad and southern Iraq.

An estimated 30,000 untried detainees are currently being held by the Iraqi authorities, although the exact number is not known as the authorities do not disclose such information.

Most are held in prisons and detention centres controlled by the ministries of justice, interior and defence in severely overcrowded facilities and otherwise poor detention conditions. As a result, many are reported to suffer from health problems, especially skin diseases.

Some detainees have been held in secret detention facilities and tortured. Recent revelations about a secret prison in Baghdad where detainees were tortured for several months have added to the sense of urgency that the Iraqi authorities must tackle the myriad human rights problems linked to their detention policies.

In the Kurdistan region of Iraq, in the north, which is run by the Kurdistan Regional Government (KRG) and where the security situation has generally been much better than in the rest of Iraq, similar abuses have been reported, albeit on a far smaller scale. Scores of people have been detained without charge or trial, some for up to 10 years. Some have been victims of enforced disappearance, and some have been tortured.

US forces, in preparation for their planned withdrawal from Iraq at the end of 2011, have since the beginning of 2009 been releasing detainees or transferring them to the custody of Iraqi authorities. They had held around 23,000 detainees in mid-2007, the majority without charge or trial.

Most of these have now been released or transferred to Iraqi-run prisons. The US military in Iraq has also transferred control of prisons and detention centres to the Iraqi government. The last prison to be transferred from US to Iraqi control was Camp Cropper near Baghdad International Airport, which at of the end of June 2010 held around 1,900 detainees. The transfer took place on 15 July 2010.

Amnesty International has frequently called on both the US and Iraqi authorities to release detainees held for long periods unless they are formally charged with a recognizably criminal offence and tried according to international standards of fair trial.

The practice of arbitrary detention flouts both Iraqi legislation and international human rights law. Iraqi legislation provides for safeguards against arbitrary arrest and detention. According to the Criminal Procedure Code,3 criminal suspects must have their case reviewed by an examining magistrate within 24 hours of arrest.

Amnesty International is concerned about the fate of thousands of detainees who have already spent considerable time in prison without charge or trial and who may be at risk of torture and other ill-treatment in Iraqi custody. Some may well have already been tortured or otherwise ill-treated by US or Iraqi forces. Under international law, the USA is barred from transferring detainees to where they face torture or other serious human rights violations.

The absolute prohibition on transferring detainees to a situation where they risk such abuses is part and parcel of the prohibition on torture and other ill-treatment itself. States’ obligation not to torture or ill-treat detainees extends to the conditions to which detainees are released or transferred. A state cannot claim to be treating detainees humanely while knowingly handing them over to torturers, anymore than it can knowingly “release” detainees in a minefield and claim that their safety is no longer its responsibility.

This report is based on a wide range of research, including a fact-finding visit by Amnesty International delegates to the Kurdistan region of Iraq between 30 May and 10 June 2010. The delegates visited prisons under the control of the Asayish — the Kurdish security forces — in Erbil and Dohuk and talked to many detainees, as well as prison directors and senior Asayish officials.

Some of the interviews with prisoners were held in private, while others were in the presence of guards. The delegates also spoke to many displaced Iraqis who had fled the violence, as well as human rights activists, women’s groups, journalists and representatives of various UN bodies and non-governmental organizations, and raised individual cases and general concerns during a meeting with the Interior Minister.

Amnesty International did not visit other parts of Iraq because of the security situation. In relation to individual detainees held there, Amnesty International conducted many telephone interviews with former detainees and the relatives of people still in prison.

It also monitored other sources of information, including the Iraqi media, government statements, reports of the Iraqi Human Rights Ministry and the International Committee of the Red Cross (ICRC), and publications of Iraqi organizations and others working on human rights-related issues inside Iraq.

Amnesty International is issuing this report at a crucial point for Iraq. At the time of writing, in mid-July 2010, US forces were finalizing the transfer of all but 200 detainees they held in Iraq to the custody of the Iraqi authorities amid widespread fears of relatives about what will happen to the detainees after transfer.

It was also a period of growing fears by Iraqis linked to the March 2010 general elections which resulted in political uncertainty as protracted post-election negotiations between the main parties had yet to agree a new government. For the many thousands of detainees who have been stuck for months or years in poor detention conditions with no idea of how long they will be denied their liberty, the need for tough safeguards to protect them from torture and continuing arbitrary detention is of paramount importance.

The report ends by calling on the Iraqi authorities and the US government to take a range of steps to protect the rights of detainees in Iraq. These include:

+ Ensure that all torture and other ill-treatment, enforced disappearances and other crimes involving human rights violations are ended immediately. Such crimes must be investigated promptly, independently, impartially and thoroughly, and all suspected perpetrators, including those with command responsibility, must be prosecuted in proceedings that meet international standards of fairness. Victims must be ensured reparations in accordance with international standards.

+ Release all detainees held without charge unless they are to be charged with recognizably criminal offences and brought to trial promptly and in full accordance with international standards of fair trial and without the imposition of the death penalty.

+ Ensure that detainees are not questioned without the presence of a lawyer and are given prompt access to legal counsel.

+ Set up an effective judicial mechanism to enable all detainees to challenge the legal basis of their detention.

+ Ensure that all detainees are held only in officially recognized places of detention and that accurate information about their arrest and whereabouts is made immediately available to relatives, lawyers and others.

CONCLUSIONS AND RECOMMENDATIONS
The human rights situation in Iraq remains extremely serious. Amnesty International recognizes that the government faces deadly attacks by armed groups who are intent on causing maximum civilian casualties. It also recognizes that it is the government’s duty to protect its population. However, the government can only do this while respecting its obligations under international human rights law and upholding the rule of law.

Even in the context of ongoing violence, there is no justification for keeping thousands of people in prisons and detention facilities without charge or trial, let alone keeping them like this for years. Many of the detainees have suffered torture and other ill-treatment by Iraqi security forces, and remain at risk of such abuses. Because of government complicity, tolerance or inaction in relation to such abuses, a culture of impunity prevails.

US forces, by transferring individuals to Iraqi detention facilities where they are clearly at risk of torture and other ill-treatment, may be complicit in these abuses and have breached their international obligations towards the prisoners.

To counter the impunity and to help protect human rights in Iraq, Amnesty International makes the following recommendations:

TO THE IRAQI AUTHORITIES, INCLUDING THE KRG
+ Ensure that all torture and other ill-treatment, enforced disappearances and other crimes involving human rights violations are ended immediately. Such crimes must be investigated promptly, independently, impartially and thoroughly, and all suspected perpetrators, including those with command responsibility, must be prosecuted in proceedings that meet international standards of fairness. Victims must be ensured reparations in accordance with international standards.

+ Release all detainees held without charge unless they are to be charged with recognizably criminal offences and brought to trial promptly and in full accordance with international standards of fair trial and without the imposition of the death penalty.

+ Ensure that anyone arrested is promptly brought before a judge or other officer authorized by law to exercise judicial power to decide without delay on the lawfulness of the detention and order release if the detention is not lawful.

+ Ensure that detainees are not questioned without the presence of a lawyer and are given prompt access to legal counsel.

+ Ensure that detainees are allowed visits by members of their families promptly after arrest.

+ Ensure that all detainees are informed at the time of arrest of the reason for their arrest and detention, and promptly informed of any charges against them.

+ Ensure that all detainees are held only in officially recognized places of detention and that accurate information about their arrest and whereabouts is made immediately available to relatives, lawyers and others.

+ Ensure that all detainees are immediately informed of their rights. These include the right to lodge complaints about their treatment and the right to have a lawyer present during questioning.

+ Set up an effective judicial mechanism to enable all detainees to challenge the legal basis of their detention.

+ Ensure that conditions of detention conform to international standards for the treatment of prisoners. The authorities responsible for detention should be separate from those in charge of interrogation. There should be regular, independent, unannounced and unrestricted visits of inspection to all places of detention by an independent and professional body.

+ Publicly condemn the practices of torture and other ill-treatment and enforced disappearances, and declare unequivocally that such abuses will not be tolerated.

+ Ensure that any detainee alleging that they have been tortured or otherwise ill-treated is promptly examined by a medical doctor.

+ Ensure that victims of torture and other ill-treatment, enforced disappearance and arbitrary detention and their families obtain prompt reparation from the state including restitution, fair and adequate financial compensation and appropriate medical care and rehabilitation.

+ Ensure that all safeguards against torture and other ill-treatment contained in the UN Convention against Torture are reflected in Iraqi legislation and implemented in practice.

+ Ratify the Optional Protocol of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and set up without delay a national preventive mechanism in accordance with the provisions of that Protocol.

+ Ratify the Rome Statute of the International Criminal Court. ␣ Ratify the second Additional Protocol to the Geneva Conventions, which governs non-international armed conflicts.

TO THE US GOVERNMENT
+ Ensure that no one at risk of torture and other ill-treatment or other grave human rights violations is transferred to Iraqi custody.

+ Ensure that those sentenced to death will not be transferred to the Iraqi authorities.

+ Ensure that all detainees who have already been transferred to Iraqi custody are not tortured or otherwise ill-treated; that allegations of torture are investigated; and that victims are provided with reparations.

+ Ensure that detainees have regular access to legal counsel and that their places of detention are inspected by the Iraqi Human Rights Ministry and the ICRC.

TO ALL GOVERNMENTS
+ Never directly or indirectly return Iraqis to Iraq if they are at risk of torture or other ill-treatment.