Issues Surrounding the Mistreatment of Iraqi Detainees by
By Leila Nadya Sadat
In February, 2004, U.S. media outlets began reporting
allegations regarding the mistreatment of Iraqi
detainees by U.S. Coalition Forces (CF).
(1) Earlier complaints had been raised
by many Iraqis and various human rights organizations
as well as the International Committee of the
Red Cross (ICRC), which issued a report in February
2004 detailing the ICRC's concerns with the conditions
of arrest and detention of Iraqis by Coalition
Forces. (2) On
January 19, 2004, Lt. General Ricardo Sanchez,
the senior U.S. Commander in Iraq, requested U.S.
Central Command to conduct an investigation, and
on January 31, 2004, Major General Antonio M.
Taguba was appointed to conduct an "informal investigation
. . . into the 800th MP Brigade's detention and
internment operations," in particular as regards
the Abu Ghraib prison in Baghdad. General Taguba's
report was issued on February 26, 2004, but was
not made publicly available until graphic photos
depicting U.S. soldiers abusing Iraqi prisoners
in various ways were aired by CBS on 60 Minutes
II on Wednesday, April 28, 2004.
The Taguba report describes, in its own words,
incidents of "sadistic, blatant, and wanton
criminal abuses . . . inflicted on several detainees
. . . . [which were] systemic and illegal."
(3) The report presents a catalog
of offenses including, inter alia, physical
abuse, videotaping and photographing naked male
and female detainees, posing detainees in various
sexually explicit positions for photographing,
forcing detainees to remove their clothing and
remain naked for several days at a time, a male
MP guard having sex with a female detainee and
using military working dogs, without muzzles,
to intimidate and frighten detainees, and in
at least one case biting and severely injuring
a detainee." (4)
The Abu Ghraib prison scandal raises important
questions of international law and practice,
as well as policy questions beyond the scope
of this Insight. This analysis confines
itself to examining the international law applicable
to the CF arrest and detention of Iraqi prisoners,
as well as possible questions of individual
and command responsibility for breaches, in
general terms. It will not discuss the application
of the Uniform Code of Military Justice to particular
individuals, or other potentially applicable
statutes, such as the Torture Victim Protection
Act, (5) the
War Crimes Act of 1996, as amended,
(6) or the Military Extraterritorial
Jurisdiction Act. (7)
I. Applicable Law
Two distinct bodies of international law apply
to the arrest and detention of Iraqis by Coalition
Forces - international humanitarian law and
international human rights law. Additionally,
principles of State Responsibility and international
criminal law may illuminate the possible legal
exposure of the United States, as well as the
potential personal criminal responsibility of
those responsible for violations of the laws
of war and international human rights law.
A. Issues Arising Under International
There is no dispute that U.S. and U.K. Coalition
Forces in Iraq (CF) are subject to international
humanitarian law. (8)
Nor do the occupying powers dispute this. Security
Council Resolution 1483 called upon all States
to observe their obligations under the Geneva
Conventions of 1949 and the Hague Regulations
of 1907, (9)
and the Taguba Report notes that all Enemy Prisoners
of War (EPWs) and Civilian Internees should
receive the "full protection of the Geneva Conventions,
unless the denial of these protections is due
to specifically articulated military necessity
(e.g., no visitation to preclude the direction
of insurgency operations)."
(10) Both GC III (Relative to Prisoners
of War) and GC IV (Relative to the Protection
of Civilian Persons in Time of War) are applicable
to the conflict, (11)
although different provisions of the Conventions
may apply depending on the status of an individual
These distinctions are not particularly important
in this case because the abuses documented are
illegal regardless of the status of the particular
individuals involved. Prisoners of War must
be humanely treated, and protected "at all times"
"particularly against acts of violence or intimidation
and against insults and public curiosity."
(13) Their families must be notified
of their capture, and, in particular, outrages
upon personal dignity, and humiliating and degrading
treatment are prohibited.
(14) Civilians must be treated at
all times "with humanity,"
(15) and "in all circumstances, to
respect for their persons, their honour, their
family rights, their religious convictions and
practices, and their manners and custom. They
shall at all times be humanely treated, and
shall be protected especially against all acts
of violence or threats thereof and against insults
and public curiosity."
(16) In particular, "[n]o physical
or moral coercion shall be exercised against
protected persons, in particular to obtain information
from them or from third parties,"
(17) and murder, torture, corporal
punishment and "any other measure of brutality
whether applied by civilian or military agents"
is prohibited. (18)
According to available reports, it appears
that most of the persons arrested and detained
by Coalition Forces are civilians. In addition,
the ICRC Report states that between 70 % and
90% of the persons deprived of their liberty
in Iraq were arrested by mistake.
(19) If correct, this appears to be
a violation of the obligations imposed on the
occupying powers by the Third and Fourth Geneva
Conventions to maintain the distinction between
combatants and non-combatants, and to treat
the civilian population with dignity and respect.
(20) According to the ICRC Report:
Arresting authorities entered houses usually
after dark, breaking down doors, waking up
residents roughly, yelling orders, forcing
family members into one room under military
guard while searching the rest of the house
and further breaking doors, cabinets, and
other property. They arrested suspects, tying
their hands in the back with flexi-cuffs,
hooding them, and taking them away. Sometimes
they arrested all adult males present in a
house, including elderly, handicapped or sick
people. Treatment often included pushing people
around, insulting, taking aim with rifles,
punching and kicking and striking with rifles.
The Conventions do not prohibit the arrest
and detention of Iraqis per se, but
impose strict procedural and substantive requirements
on the manner of arrest, treatment of detainees,
and ultimate disposition of particular cases.
This is also true of Army Regulation 190-8 which
provides that although prisoners may be interrogated
in combat zones, the use of physical or mental
torture or any coercion to compel them to provide
information is prohibited.
In addition to the specific allegations of
abuse discussed above, other violations of U.S.
Army Regulations and international humanitarian
law at Abu Ghraib include the failure to properly
register the names of detainees and internees
on capture or internment cards, and to keep
track of individual prisoners, a problem exacerbated
by severe overcrowding at the prison and lack
of training for U.S. military forces as well
as Iraqi guards and civilian contractors.
(22) Finally, treatment during interrogation
was apparently deeply problematic, including
physical and psychological coercion, although,
according to the ICRC Report, ill-treatment
was not systematic except "with regard to persons
arrested in connection with suspected security
offenses or deemed to have an 'intelligence'
Methods used included hooding, handcuffing with
flexi-cuffs, beatings and other forms of physical
abuse, solitary confinement, threats (of ill-treatment,
reprisals against family members, imminent execution
or transfer to Guantanamo), denial of fresh
air, being paraded naked, acts of humiliation
such as being made to stand naked against the
wall of the cell with arms raised or with women's
underwear over the head - while being laughed
at by guards, including female guards, and sometimes
photographed in this position, and being subjected
repeatedly over several days, sometimes naked,
as well as exposure while hooded, to loud music
or excessive heat. (24)
These are clear violations of the provisions
of both the Third and Fourth Geneva Conventions,
and certain abuses may also constitute torture.
B. The Application of International Human
Particularly given the mixed nature of the
prison populations at Abu Ghraib and elsewhere,
including civilians, Iraqi criminals, and prisoners
of war, the application of both treaty-based
and customary human rights law becomes important.
The relevant instruments include the International
Covenant on Civil and Political Rights, a treaty
to which both Iraq and the United States are
parties, the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment
or Punishment, a treaty to which the United
States is a party, and the Universal Declaration
of Human Rights, a U.N. General Assembly resolution
widely recognized as a statement of customary
international law. In addition, the Rome Statute
for the International Criminal Court, although
not ratified by the United States or Iraq, has
been recognized as an authoritative basis for
the definition of Crimes Against Humanity, as
reflected in the Statute of the Iraqi Special
Moreover, the United Nations has elaborated
principles regarding the treatment of prisoners,
(27) as well as a Declaration on the
Protection of All Persons from Enforced Disappearance,
1992, which may be particularly applicable as
regards "Ghost Detainees" and others who have
been taken into custody without notification
to their relatives, or without a record of their
incarceration being made.
International human rights law imposes stringent
requirements regarding the treatment of detainees
and prisoners, which are applicable at all times,
including military occupation. These parallel,
in many cases, the provisions of international
humanitarian law. In particular, all persons
deprived of their liberty "shall be treated
with humanity and with respect for the inherent
dignity of the human person."
(29) Additionally, accused and convicted
persons must be segregated from each other and
subject to separate treatment, based on the
presumption that those not yet convicted have,
under international human rights law, the right
to be presumed innocent. Thus, the Taguba report
recommends the separation of the Iraqi criminal
population in the prisons, from other detainees.
Finally, the U.N. Standard Minimum Rules
(30) and the United Nations Human
Rights Committee have generally emphasized the
need for contact with the outside world, both
as a basic right of the detainee, and as a potential
check on abuse. As the Human Rights Committee
has noted, this is particularly important as
regards the right of a detainee to have access
to counsel (particularly applicable in this
case regarding civilians and those accused of
Iraqi penal offenses or crimes against the coalition),
not only to assist in the prisoner's defense,
but as an additional protection against the
possibility of ill-treatment.
II. Legal Responsibility of States and
Individual Criminal Responsibility of Individuals
for Violations of International Humanitarian
Law and International Human Rights Law
A complete picture of State and individual
responsibility for the abuses detailed in the
media, the Taguba Report and the ICRC Report
is impossible due to space constraints and the
incomplete facts currently available. However,
a few comments on the applicable legal principles
As regards potential U.S. responsibility,
as a party to all the relevant human rights
treaties and the Geneva Conventions, the United
States has a duty to fulfill its obligations
under those international conventions. As regards
the ICCPR, the Human Rights Committee has insisted
on the duty of States to take action against
the acts prohibited in article 7 of the Covenant,
providing that "no one shall be subjected to
torture or to cruel, inhuman or degrading treatment."
The prohibition against torture and the right
to life are peremptory, non-derogable norms
that cannot be departed from no matter how grave
the situation. (32)
Under the Fourth Geneva Convention, the U.S.
is required to provide effective penal sanctions
for grave breaches (such as torture or inhuman
treatment) and to "take measures necessary for
the suppression of all [other] acts contrary
to the provisions of [GC IV]".
(33) Similarly, the Torture Convention
requires States Parties to prevent, promptly
and impartially investigate (and, if called
for, prosecute) acts of torture "committed in
any territory under its jurisdiction."
(34) These treaties therefore impose
specific obligations on the United States, in
addition to any general principles of State
Responsibility for harm that might apply as
a matter of customary international law.
Additionally, individual perpetrators and
their superiors may be individually criminally
liable, either for direct participation in any
crimes alleged, or under the doctrine of command
responsibility. Possible charges include Grave
Breaches of the Geneva Conventions (GC III,
arts. 129-130; GC IV, arts. 146-147, including
wilful killing, torture or inhuman treatment,
wilfully causing great suffering or serious
injury to body or health, or wilfully depriving
a prisoner of war or protected person of the
rights of fair and regular trial). They may
also be responsible for torture or enforced
disappearance of persons, as crimes prohibited
under treaty and customary international law,
both as substantive offenses and as predicate
offenses to charges of crimes against humanity.
Finally, although the U.S. has no legislation
directly punishing crimes against humanity,
and is not a party to the ICC Statute, if the
crimes committed were widespread or systematic,
constitute an attack on a civilian population,
and were carried out pursuant to a state or
organizational policy, they could be characterized
as crimes against humanity.
Although the standard for command responsibility
varies slightly depending on the instrument
and jurisdiction involved, guidance as to the
general responsibility of civilian and military
leaders under international law may be drawn
from article 28 of the ICC Statute. Regarding
military commanders, article 28 (1) provides
that commanders who either knew or should have
known of the offenses committed, and who failed
to take all "necessary and reasonable measures
within [their] power to prevent or repress their
commission or to submit the matter to the competent
authorities for investigation and prosecution"
shall be criminally responsible for crimes committed
under their effective command and control, or
effective authority and control, as a result
of their failure to exercise control properly
over his or her forces. Similarly, article 28(2)
provides that other superiors (i.e., civilian
officials), may be responsible for crimes committed
by their subordinates if all three of these
conditions are met: first, the superior either
knew, or consciously disregarded, information
which clearly indicated that the subordinates
were committing or about to commit such crimes;
second, the crimes concerned activities within
the effective responsibility and control of
the superior; and third, the superior failed
to take all necessary and reasonable measures
within his or her power to prevent or repress
the crimes or to submit the matter for investigation
and prosecution. Generally, wilful blindness
may not effectively shield a commander or superior
from criminal responsibility.
About the Author:
Leila Nadya Sadat is a Professor and the Israel
Treiman Faculty Fellow, Washington University
School of Law.
______________________________ 1. CNN Headline, 8 Iraqi
Police Killed in Kirkuk Bombing, Feb. 23,
2004. CNN reported that 17 military personnel
had been relieved of duty as a result of a criminal
investigation into alleged abuse of Iraqi detainees
at Abu Ghraib prison in Baghdad. Apparently
the story did not receive much air time in the
United States, but received significant coverage
2. Report of the International
Committee of the Red Cross (ICRC) on the Treatment
by the Coalition Forces of Prisoners of War
and Other Protected Persons by the Geneva Conventions
in Iraq During Arrest, Internment and Interrogation,
¶ 1 (Feb. 2004), <www.cbsnews.com/htdocs/pdf/redcrossabuse.pdf>
[hereinafter ICRC Report]. The ICRC Report was
based on allegations collected by the ICRC during
its visits to places of internment of the Coalition
Forces between March and November, 2003.
10. Taguba Report, supra
note 3, at pp. 7-8 (summarizing report of MG
11. The U.S. government
has acknowledged the applicability of the Geneva
Conventions to Operation Iraqi Freedom, but
resisted their application to Operation Enduring
Freedom regarding the invasion of Afghanistan,
particularly as regards the detainees at Guantanamo.
However, CF at Abu Ghraib appear not to have
received instruction and training in Geneva
law, Taguba Report, supra, at p. 18,
para. 30, 32; p. 27, para. 19-21; and a debate
is emerging as to whether there may have been
some conflation of the principles applicable
and persons serving in the two conflicts. Tim
Golden & Eric Schmitt, General Took
Guantánamo Rules to Iraq for Handling
of Prisoners, N.Y. Times, May 13, 2004,
12. British Forces are
also subject to Protocol I to the Geneva Conventions
(adding considerable detail to the Conventions),
but as the U.S. has not ratified Protocol I,
its application is not discussed here.
13. GC III, art. 13. This
is the same provision relied upon by the U.S.
government in protesting the display of U.S.
POWs on Iraqi Television in March, 2003. See
Iraq parades US prisoners of war on TV,
UK Telegraph, Mar. 23, 2003, available at
by President Bush and Secretary Rumsfeld that
showing prisoners of war on television violated
the international rules of war in the Geneva
Conventions and that inhumane treatment could
result in prosecution of Iraqis as "war criminals.").
See also, Donald Rumsfeld on Face the Nation,
March 23, 2003, available at <http://www.cbsnews.com/stories/2003/03/23/ftn/main545616.shtml>.
19. Other categories of
persons apparently found in the prisons are
Iraqi criminals accused of committing crimes
against other Iraqis, presumably either held
over from the Saddam era or newly imprisoned
by the Iraqi police or Coalition Forces (Taguba
Report, at p. 7), as well as a category cryptically
referred to as "Retained Personnel,"a category of EPWs that include medical
personnel, chaplains, and members of the Red
Cross or Red Crescent. See <http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf>.
The Taguba Report also makes reference to "High
Value Detainees"(who may have valuable intelligence
or other value), "Other Detainees," and "Ghost
Detainees," described as individuals, whose
identities were unknown by the 800th
MP Brigade, but who were held at Abu Ghraib
at the request of Other Government Agencies,
and were "moved around the facility to hide
them from a visiting ICRC survey team." Taguba
Report, supra note 3, at p.
18, para. 33. The Report suggests that maybe
60 percent of those incarcerated were picked
up for "crimes against the Coalition," and that
many could have been released who were not.
Id. p. 17, para. 24.
22. Id., pp.
7-9; Taguba Report, supra note 3, pp.
17-18. The Report and recent testimony suggest
that some of the abuses may have stemmed from
the influence of military intelligence officers
who had asked (or ordered, it is not clear)
military police to set "favorable conditions"
for subsequent interviews by stressing or softening
up detainees. Taguba Report, supra,
p. 8; Eric Schmitt, Rumsfeld Aide and a
General Clash on Abuse, NY Times, May 12,
2004, at A1.
25. See, e.g., GC
III, arts. 13, 14, 17, 87, 99; GC IV, arts.
27, 5, 31, 32.
26. The Statute of the
Iraqi Special Tribunal, art. 12 generally tracks
the ICC definition, although it omits enforced
sterilization and apartheid as predicate crimes,
and has slight linguistic differences, not relevant
in this situation.
27. Standard Minimum Rules
for the Treatment of Prisoners, Adopted by the
First U.N. Congress on the Prevention of Crime
and the Treatment of Offenders (Geneva, 1955),
and approved by ECOSOC Resolutions 663 C (XXIV)(July
31, 1957) and 2076 (LXII)(May 13, 1977), available
28. This may also be characterized
as a crime against humanity under article 7(1)(i)
of the ICC Statute, if the other preconditions
for its application are met.
36. See, e.g., The
Prosecutor v. Delalic, et al., IT-96-21-T, Judgment,
para. 387 (Nov. 16, 1998).
The purpose of ASIL Insights is to provide concise
and informed background for developments of
interest to the international community. The
American Society of International Law
does not take positions on substantive issues,
including the ones discussed in this Insight.