Beyond Abu Ghraib: detention and torture in Iraq

Introduction

Nearly three years after United States (US) and allied forces invaded Iraq and toppled the government of Saddam Hussain, the human rights situation in the country remains dire. The deployment of US-led forces in Iraq and the armed response that engendered has resulted in thousands of deaths of civilians and widespread abuses amid the ongoing conflict.

As Amnesty International has reported elsewhere(1), many of the abuses occurring today are committed by armed groups opposed to the US-led Multinational Force (MNF) and the Iraqi government that it underpins. Armed groups continue to wage an uncompromising war marked by their disregard for civilian lives and the basic rules of international humanitarian law. They commit suicide and other bomb attacks which either target civilians or while aimed at military objectives are disproportionate in terms of causing civilian casualties, and they abduct and hold victims hostage, threatening and often taking their lives. Amnesty International condemns these abuses, some of which are so egregious as to constitute crimes against humanity, in addition to war crimes, and continues to call on Iraq’s armed groups to cease such activities and abide by basic requirements of international humanitarian law.

In this report, Amnesty International focuses on another part of the equation, specifically its concerns about human rights abuses for which the US-led MNF is directly responsible and those which are increasingly being committed by Iraqi security forces. The record of these forces, including US forces and their United Kingdom (UK) allies, is an unpalatable one. Despite the pre-war rhetoric and post-invasion justifications of US and UK political leaders, and their obligations under international law, from the outset the occupying forces attached insufficient weight to human rights considerations. This remains the position even if the violations by the MNF that are the subject of this report do not have the same graphic, shock quality as the images that emerged in April 2004 and February 2006 showing inmates being tortured and humiliated by US guards at Baghdad’s Abu Ghraib prison and Iraqi youth being beaten by UK troops after they were apprehended during a riot. The same failure to ensure due process that prevailed then, however, and facilitated - perhaps even encouraged such abuses – is evidenced today by the continuing detentions without charge or trial of thousands of people in Iraq who are classified by the MNF as "security internees".

The MNF has established procedures which deprive detainees of human rights guaranteed in international human rights law and standards. In particular, the MNF denies detainees their right to challenge the lawfulness of their detention before a court. Some of the detainees have been held for over two years without any effective remedy or recourse; others have been released without explanation or apology or reparation after months in detention, victims of a system that is arbitrary and a recipe for abuse.

Many cases of torture and ill-treatment of detainees held in facilities controlled by the Iraqi authorities have been reported since the handover of power in June 2004. Among other methods, victims have been subjected to electric shocks or have been beaten with plastic cables. The picture that is emerging is one in which the Iraqi authorities are systematically violating the rights of detainees in breach of guarantees contained both in Iraqi legislation and in international law and standards – including the right not to be tortured and to be promptly brought before a judge.

Amnesty International is concerned that neither the MNF nor Iraqi authorities have established sufficient safeguards to protect detainees from torture or ill-treatment. It is particularly worrying that, despite reports of torture or ill-treatment by US and UK forces and the Iraqi authorities, for thousands of detainees access to the outside world continues to be restricted or delayed. Under conditions where monitoring of detention facilities by independent bodies is restricted – not least, due to the perilous security situation – measures which impose further limitations on the contact detainees may have with legal counsel or relatives increase the risk that they will be subject to torture or other forms of abuse.

Amnesty International is calling on the Iraqi, US and UK authorities, who both operate detention facilities where persons detained by the MNF are held, to take urgent, concrete steps to ensure that the fundamental human rights of all detainees in Iraq are respected. In particular, these authorities must urgently put in place adequate safeguards to protect detainees from torture or ill-treatment. This includes ensuring that all allegations of such abuse are subject to prompt, thorough and independent investigation and that any military, security or other officials found to have used, ordered or authorized torture are brought to justice. It includes too ensuring that detainees are able effectively to challenge their detention before a court; the right to do so constitutes a fundamental safeguard against arbitrary detention and torture and ill-treatment, and is one of the non-derogable rights which states are bound to uphold in all circumstances, even in time of war or national emergency.(2)

Torture and ill-treatment goes on

Karim R (3), a 47-year old imam and preacher (khatib), was detained and tortured by US forces in 2003 and then by Iraqi forces in 2005. On each occasion, he was subsequently released uncharged. He told Amnesty International that he was first detained in October 2003 by US forces in Baghdad, where he lives and is head of a charity. He was insulted, blindfolded, beaten and subjected to electric shocks from a stun gun (taser) by US troops at a detention facility in the Kadhimiya district of Baghdad. After seven days of detention, he was released without charges.

Karim R was again detained in May 2005 for 16 days – this time by forces of the Iraqi Interior Ministry at a detention facility they operated in Baghdad. During this detention, he was blindfolded and then beaten and subjected to electric shocks while being hung up in a manner designed to cause him excruciating pain. He told Amnesty International:

"They tied my hands to the back with a cable. There was an instrument with a chain which was attached to the ceiling. When they switched it on the chain pulled me up to the ceiling. Because the hands are tied to the back this is even more painful (…) Afterwards they threw water over me and they used electric shocks. They connected the current to my legs and also to other parts of my body. (…) The first time they subjected me to electric shocks I fainted for 40 seconds or one minute. It felt like falling from a building. I had a headache and was not able to walk. The interrogator said: You better confess to terrorist activities, in order to save your life. I responded that I was not involved in these activities and that I had a heart condition. (…) Later they forced me to confess on camera. They asked questions claiming that I was a terrorist but they did not even give me the chance to reply. They just stated that I was a terrorist. (…)."

Torture and ill-treatment in Iraqi detention facilities
In the weeks leading up to Iraq’s parliamentary elections, held on 15 December 2005, new evidence emerged to indicate that the Iraqi Interior Ministry was holding many detainees in different facilities under its control and subjecting them to torture and ill-treatment. On 13 November 2005, US military forces raided one detention facility controlled by the Interior Ministry in the al-Jadiriyah district of Baghdad, where they reportedly found more than 170 detainees being held in appalling conditions, many of whom alleged that they had been tortured. On 8 December 2005, Iraqi authorities and US forces inspected another detention facility in Baghdad, also controlled by the Interior Ministry. At least 13 of the 625 detainees found there required medical treatment, including several reportedly as a result of torture or ill-treatment. The Iraqi Ministry of Interior denied that any detainees had been tortured or abused.(4) However, the US ambassador to Iraq, Zalmay Khalilzad, stated that "over 100" detainees found at the detention facility in al-Jadiriyah and 26 detainees at the other detention location had been abused.(5)

According to media reports, in both cases detainees alleged that they had been subjected to electric shocks and had their nails pulled out. (6) An Iraqi Human Rights Ministry official subsequently told Amnesty International that the Iraqi authorities had conducted medical examinations but that these had not confirmed the allegations. However, the official stated that several detainees had injuries caused by beating with plastic cables. Further, the official confirmed that abuses committed at other detention facilities under the control of Iraqi authorities over the past year included incidents of detainees having been subjected to electric shocks. (7)

Months earlier, Human Rights Watch had drawn attention to increasing reports of torture and ill-treatment of detainees by Iraqi government forces in a report published in January 2005. The report was based on interviews which Human Rights Watch had conducted with 90 detainees and former detainees between July and October 2004, 72 of whom disclosed that they had been tortured or ill-treated while in detention. Some had been held as criminal suspects but others had been detained apparently because of their political activities or alleged affiliation with armed groups.(8) Yet, despite the Human Rights Watch findings, little or no action appears to have been taken by either the Iraqi government or the MNF in the months following to address this pattern abuse, and to safeguard detainees from torture or ill-treatment.

Unsurprisingly, in view of this failure to crack down on the torturers and end the cycle of abuse, several detainees are reported to have died in 2005 while being held in the custody of the Iraqi authorities; in several cases, the bodies of the victims reportedly bore injuries consistent with their having been tortured. On 12 February 2005 three men, who were reportedly members of the Badr Organization,(9) a Shi’a militia, died in custody after being arrested by Iraqi police at a police checkpoint in the Zafaraniya district of Baghdad. The bodies of 39-year-old Majbal ‘Adnan Latif al-Alawi, his 35-year-old brother ‘Ali ‘Adnan Latif al-Alawi, and 30-year-old ‘Aidi Mahassin Lifteh were found three days later, bearing marks of torture. Autopsy reports found "that all three had bruises on their faces, arms, backs, and legs, apparently from being struck with a stick or long object".(10)

After having been detained by a special police force of the Interior Ministry, the Wolf Brigade(11), a 46-year-old housewife from Mosul, Khalida Zakiya, was shown in February 2005 on the Iraqi TV channel al-‘Iraqiya alleging that she had supported an armed group. However, she later withdrew this confession and alleged that she had been coerced into making it. She was reportedly whipped with a cable by members of the Wolf Brigade and threatened with sexual abuse.(12)

In May 2005 four Palestinians who were long term residents of Iraq - , Faraj ‘Abdullah Mulhim, aged about 41, ‘Adnan ‘Abdullah Mulhim, aged about 31, Amir ‘Abdullah Mulhim, aged about 26, and Mas’ud Nur al-Din al-Mahdi, aged about 33 – were tortured and ill-treated after they were detained by members of the Wolf Brigade who took them from their homes in Baghdad. All four were seized on the night of 12 May 2005, when Wolf Brigade forces stormed homes in the Baladiyat Palestinian Building within Baladiyat Camp in Baghdad. They were arrested as suspects in a bomb attack that had been carried out earlier that day in Baghdad’s al-Jadida district although they denied any involvement. Members of the Wolf Brigade were said to have beaten the four men with rifle butts when they arrested them.

On 14 May 2005, the four men were shown on the Iraqi TV channel al-‘Iraqiyya admitting responsibility for the al-Jadida bomb attack but all showed visible signs of having been assaulted. Relatives who saw the programme told Amnesty International that the four men had injuries to their faces which led them to suspect that they had been subjected to torture or ill-treatment in order to force them to make confessions. Later, when the men gained access to a lawyer in July 2005 they repudiated their confessions and alleged that they had been systematically tortured for 27 days while being held by the Wolf Brigade in a Ministry of Interior building in the al-Ziyouna district of Baghdad. They stated that they had been beaten with cables and had electric shocks applied to their hands, wrists, fingers, ankles and feet. They also said they were burnt on the face with lighted cigarettes and were placed in a room with water on the floor while an electric current was passed through. They alleged too that a US military officer was present at one time in the room in which they were being interrogated.

The four men also allege that they were forced under torture to sign confessions while they were blindfolded in which they also admitted responsibility for five other bomb attacks said to have been committed at police stations in other districts of Baghdad. However, when their lawyer looked into these other alleged bombings he found that they had never taken place and was able to obtain official documentation to confirm this. Nevertheless, the four Palestinians were transferred to the detention of the Major Crimes Directorate (mudiriyat al-jara’im al-kubra) in the Rusafa district of Baghdad on 9 June 2005. At first, the senior officer at this place of detention reportedly refused to accept the four men because they were clearly suffering from serious injuries. However, an investigating officer (dhabit al-tahqiq) reportedly listed all their injuries, so that it would be clear that they had not been inflicted under his direction. Six weeks later, around 23 July, the Palestinians were transferred to the detention centre in al-A’zamiya district of Baghdad, which deals with cases involving terrorism in Iraq.

According to Iraqi legislation, a detainee must be brought before an investigating judge within 24 hours of arrest.(13) However, the four Palestinians were only brought before an investigating judge on or about 26 July 2005, over five weeks after their initial detention. At the beginning of 2006 the four Palestinians continued to be held.

In July, 2005, the UK’s Observer newspaper reported on further cases of torture and other grave human rights abuses, including possible extrajudicial executions, by Iraqi security forces. The newspaper included a detailed description of film footage showing the corpse of Hassan al-Nu’aimi, a Sunni cleric and member of the Association of Muslim Scholars, who was found dead in May 2005 in Baghdad – one day after he was detained by Iraqi police commandoes. The Observer’s correspondent wrote:

"There are police-issue handcuffs still attached to one wrist, from which he was hanged long enough to cause his hands and wrists to swell. There are burn marks on his chest, as if someone has placed something very hot near his right nipple and moved it around. A little lower are a series of horizontal welts, wrapping around his body and breaking the skin as they turn around his chest, as if he had been beaten with something flexible, perhaps a cable. There are other injuries: a broken nose and smaller wounds that look like cigarette burns. An arm appears to have been broken and one of the higher vertebrae is pushed inwards. There is a cluster of small, neat circular wounds on both sides of his left knee. At some stage an-Ni’ami [sic] seems to have been efficiently knee-capped. It was not done with a gun - the exit wounds are identical in size to the entry wounds, which would not happen with a bullet. Instead it appears to have been done with something like a drill. What actually killed him however were the bullets fired into his chest at close range, probably by someone standing over him as he lay on the ground. The last two hit him in the head."(14)

The same month, July 2005, nine out of a group of 12 men who had been detained by police in Baghdad’s al-‘Amirya district suffocated to death after they were confined in a police van for up to 14 hours in extremely high temperatures. The Iraqi authorities said that the 12 were members of an armed group who had been detained after they were engaged in an exchange of fire with US or Iraqi forces. Other sources, however, suggested that they were a group of bricklayers who had been detained on suspicion that they were insurgents and then brutally tortured by police commandoes before being confined in the police vehicle. Medical staff at the Yarmouk Hospital in Baghdad, where the bodies of those who died were taken on 11 July 2005, reportedly confirmed that some of them bore signs of torture, including electric shocks.(15)

Under the eyes of the Multinational Force
MNF officials have generally sought to distance the US-led alliance from any involvement when there has been publicity regarding torture and other abuses by Iraqi government forces. However, the increasing availability of such information since at least the beginning of 2005, as well as the continuing close day to day collaboration between MNF forces and those of the Iraqi government, suggests that MNF commanders and the governments to which they are responsible have been well aware for a considerable time that the Iraqi forces they support are responsible for gross abuses of human rights. Yet, as part of their cooperation with Iraqi government forces, the MNF continued to hand over some of those whom its forces detained into the custody of Iraqi forces, despite the obvious risks to which this must expose such prisoners. In this respect, the MNF would appear to have been either seriously negligent or, effectively, complicit in the abuses committed by Iraqi government forces and supine in their failure to make clear to the Iraqi government and its forces that torture and other violations against prisoners must not be tolerated, and that those who commit such abuse must be brought promptly to justice.(16)

That the US authorities have been aware of the problem of torture by their Iraqi allies is clear from the US Department of State’s annual report(17) to Congress on human rights practices around the world, whose February 2005 edition, reporting on 2004, made extensive reference in its Iraq country chapter to information on torture published by Human Rights Watch.(18) However, it was not until December 2005, nearly a year after the State Department’s report was compiled, before a US military commander announced that his forces were suspending their practice of handing over detainees to the Iraqi authorities, Major General John D. Gardner, commander of Task Force 134, which is in charge of MNF detention operations, stated: "We will not pass on facilities or detainees until they [the Iraqi authorities] meet the standards we define and that we are using today".(19)

There have also been allegations that US forces knew that detainees were being tortured and ill-treated at places of detention under the control of the Interior Ministry, which they frequently visited. In a radio interview in December 2005, a former commander of special forces at the Interior Ministry, General Muntazar Jasim al-Samarra’i, identified several detention locations of the Interior Ministry where torture has allegedly been commonplace. He claimed: "The prison on al-Nasr Square, next to the TV-tower, it is the largest prison under the responsibility of the Interior Ministry. Members of the US forces visited this prison every day. The US troops knew everything about the torture".(20)

Former detainees who were subjected to torture or ill-treatment or who witnessed the infliction of such abuses on fellow detainees while they were being held in the custody of the Iraqi authorities, have told Amnesty International that such incidents occurred with the knowledge or even in the presence of US troops.(21)

The New York Times reported an incident which occurred in March 2005 in Samarra following a joint raid by US troops and forces under the control of the Iraqi Interior Ministry. The reporter described the beating of an Iraqi detainee by an Iraqi police captain during which US troops were present: "Instead of a quick hit or slap, we now saw and heard a sustained series of blows. We heard the sound of the captain’s fists and boots on the detainee’s body, and we heard the detainee’s pained grunts as he received his punishment without resistance." A US Air Force captain present at the incident reportedly made the following comment: "If I think they’re going to shoot somebody or cut his finger off or do any sort of permanent damage, I will immediately stop them (…) As Americans, we will not let that happen. In terms of kicking a guy, they do that all the time, punches and stuff like that."(22)

At the most senior levels, however, there appear to have been different views within the US politico-military establishment as to the responsibility of US troops who witness incidents of torture or ill-treatment. When questioned in November 2005 about the use of torture by Iraqi authorities, US Secretary of Defense Donald Rumsfeld was reported to have responded that he did not consider that US soldiers who see "inhumane treatment" of detainees have an obligation to intervene to stop it. The Chairman of the Joint Chiefs of Staff, however, General Peter Pace, interjected "If they are physically present when inhumane treatment is taking place, sir, they have an obligation to stop it".(23)

The legacy of the Abu Ghraib prison scandal
In February 2004, the International Committee of the Red Cross (ICRC) submitted a report to the Coalition Forces(24) which described serious violations of international humanitarian law committed by these forces in Iraq. These included brutality against protected persons during their arrest and initial detention, sometimes causing death or serious injury, as well as various methods of torture and ill-treatment inflicted on detainees. The public release of images in April 2004 showing detainees being tortured and ill-treated by US soldiers at Abu Ghraib prison, caused worldwide shock, horror and outrage. The subsequent US military investigation in Iraq headed by Major General Antonio Taguba found that Coalition Forces were responsible for "systemic" and "illegal abuse of detainees" held at Abu Ghraib prison between August 2003 and February 2004, and concluded that soldiers had "committed egregious acts and grave breaches of international law at Abu Ghraib…".(25)

Amnesty International interviewed former detainees who disclosed that they were among the prisoners subjected to torture and ill-treatment in US custody at Abu Ghraib. They included women who said they had been beaten, threatened with rape, subjected to humiliating treatment and long periods of solitary confinement. Some former detainees told Amnesty International that they had been forced to lie on the ground while handcuffed and hooded or blindfolded for long periods. They were repeatedly beaten, restrained for prolonged periods in painful "stress" positions and some were also subjected to sleep deprivation, prolonged standing, and exposure to loud music and bright lights, apparently intended to cause disorientation.

Other testimonies of detainees who were tortured or ill-treated at Abu Ghraib prison were documented by human rights organizations and in the media. Male detainees complained that they were deliberately degraded by being forced to masturbate in front of female soldiers and to wear women’s underwear. They were kept naked, sometimes for several days. Detainees were assaulted and threatened with rape. They alleged too that they were forced, in breach of their religious beliefs, to eat pork, to drink alcohol and to move about on all fours in imitation of dogs.

The videotaped testimony of one Abu Ghraib victim, Hussein Mutar, was shown in evidence to a US military court martial sitting in Texas, USA, in January 2005. Hussein Mutar had reportedly been detained on suspicion of car theft and was tortured and ill-treated while held at Abu Ghraib in November 2003.(26) In the evidence laid before the court martial, he identified himself as one of a number of prisoners in a photograph taken by a US guard at the prison which showed several naked male detainees being forced to lie on top of one another. He also spoke of his feelings of humiliation and shame when US guards forced him to masturbate over fellow inmates: "I couldn’t imagine it in the beginning that this could happen. But I wished for my death, that I could kill myself, because no one over there would stop what was going on".(27)

Following the worldwide disclosure of the abuses of detainees at Abu Ghraib in April 2004, the US authorities undertook various inquiries and reviews, and court- martialed a number of the US prison guards who were depicted in photographs abusing prisoners. These investigations, however, have mostly been internal military investigations which appear to have focused on the culpability of those within the lower echelons of the military, not on the role and responsibilities of those higher up the chain of command, including at the most senior levels. For example, on 10 March 2005, the US authorities released a summary of the findings of a review carried out by Vice Admiral Albert T. Church, Inspector-General of the US Navy which had been initiated by US Secretary of Defense Donald Rumsfeld in May 2004. The review found "no connection between interrogation policy and abuse".(28) Only the executive summary was made public and the remainder of the 378-page Church Report remains classified. It was revealed, however, that the Church investigation failed to interview any Iraqi detainees or former detainees. Nor did it interview Secretary Rumsfeld.

The US authorities have stated on numerous occasions that its regime of detention in Iraq has fundamentally changed since abuses at the Abu Ghraib prison were exposed. The US government’s second periodic report to the UN Committee Against Torture of June 2005 states: "The Department of Defense has improved its detention operations in Iraq and elsewhere, improvements have been made based upon the lessons learned, and in part because of the broad investigations and focused inquiries into specific allegations. These comprehensive reports, reforms, investigations and prosecutions make clear the commitment of the Department of Defense to do everything possible to ensure that detainee abuse such as occurred at Abu Ghraib never happens again."(29) However, there continue to be reports of torture and ill-treatment of detainees by US troops, which have occurred since the Abu Ghraib prison scandal was exposed.(30)

While dozens of US soldiers have been court-martialed in connection with the abuse of detainees, senior US administration officials have remained free from independent scrutiny. According to the US government, as of 1 October 2005 there had been 65 courts-martial in connection with the abuse of detainees in Iraq.(31) In June 2004, two US marines were sentenced to eight and 12 months’ imprisonment by a military court in Iraq. Both men had pleaded guilty to giving electric shocks to an Iraqi prisoner at al-Mahmudiya prison, south of Baghdad.(32) At least nine US soldiers were tried before US military courts for their involvement in the high-profile incidents of torture or ill-treatment of detainees at Abu Ghraib prison. Sentences ranged from non-custodial disciplinary measures to 10 years’ imprisonment.(33) According to the US government, 54 military personnel could be implicated in the incidents at Abu Ghraib prison.(34)

Amnesty International is concerned that several of those tried and convicted by US military courts for committing serious human rights violations in Iraq, including torture or ill-treatment, have received sentences that fail to reflect the gravity of these violations.

In September 2004, a 1st Lieutenant in the US Army was referred to trial by court-martial on charges including conspiracy, aggravated assault, involuntary manslaughter and obstruction of justice. The case involved incidents on 5 December 2003 in which an Iraqi detainee was forced into the Tigris River near Balad, and on 3 January 2004 in which two Iraqi detainees were forced off a bridge into the Tigris near Samarra. One of the detainees, 19-year-old Zaidoun Hassoun, drowned in the latter incident. The lieutenant was facing a maximum sentence of 29 years’ in prison. In the event, he was sentenced to 45 days’ confinement following a two-day court-martial in Fort Hood, Texas, on 14 and 15 March 2005. Based on a pre-trial agreement, the commanding authority did not pursue the manslaughter charge and the soldier instead pleaded guilty to assault charges.(35)

On 23 January 2006, a US court martial convicted a US army interrogator of the killing of ‘Abd Hamad Mawoush and sentenced him to forfeit $6,000 of his salary over the next four months, to receive a formal reprimand and spend 60 days restricted to his home, office and church. ‘Abd Hamad Mawoush, a major general in the Iraqi army under the government of Saddam Hussain, died in a US detention facility in Al Qaim in northwest Baghdad on 26 November 2003, two weeks after he had handed himself in to the US military. He died after being interrogated while allegedly being rolled back and forth with a sleeping bag over his head and body, and the interrogator sat on his chest and placed his hands over his mouth. According to witness testimony, the interrogator also stood by while Iraqi personnel of the US Central Intelligence Agency (CIA) subjected ‘Abd Hamad Mawoush to a brutal beating with hoses. The convicted interrogator had faced a maximum penalty of life imprisonment on charges of murder. However, the court martial found him guilty of lesser charges of "negligent homicide and dereliction of duty," which carries a maximum of three years’ imprisonment.(36)

Several UK soldiers have also been charged in connection with alleged torture or ill-treatment and the deaths of detainees. On 21 December 2005, the Court of Appeal of England and Wales ruled in a case arising from the death in September 2003 of 26-year old Baha Dawoud Salem al-Maliki (also known as Baha Mousa) and the deaths of five other Iraqis in the case of R (Al-Skeini) v Secretary of State for Defence. Delivering judgment, Lord Justice Brooke recounted what had occurred when UK troops raided a Basra hotel, where Baha Moussa worked as a receptionist, on the morning of 14 September 2003. The troops, who were seeking to locate one of the partners who ran the hotel:

"rounded up a number of the men they found there, including Baha Mousa. Baha Mousa's father, Daoud Mousa, had been a police officer for 24 years and was by then a colonel in the Basrah police. He had called at the hotel that morning to pick up his son at the end of his shift, and he told the … lieutenant in charge of the unit that he had seen three of his soldiers pocketing money from the safe. During this visit he also saw his son lying on the floor of the hotel lobby with six other hotel employees with their hands behind their heads. The lieutenant assured him that this was a routine investigation that would be over in a couple of hours. Colonel Mousa never saw his son alive again. Four days later he was invited by a military police unit to identify his son's dead body. It was covered in blood and bruises. The nose was badly broken, there was blood coming from the nose and mouth, and there were severe patches of bruising all over the body. The claimants’ witnesses tell of a sustained campaign of ill-treatment of the men who were taken into custody, one of whom was very badly injured, and they suggest that Baha Mousa was picked out for particularly savage treatment because of the complaints his father had made. The men who were arrested had been taken from the hotel to a British military base in Basrah City called Darul Dhyafa". (37)

Court-martial proceedings have since been instituted, although trials have yet to take place, against seven military personnel, including the commanding officer who has been charged with negligent performance of duty. Three of the seven military personnel have been charged with "inhuman treatment" of the detainee.(38)

In another case, UK Attorney General Lord Goldsmith announced in July 2005 that four UK soldiers would stand trial in connection with the death of Ahmed Jaber Karim ‘Ali, one of four men detained on suspicion of looting in May 2003 in Basra. It has been alleged that UK servicemen, allegedly punched and kicked the suspects and then forced them into the Shat Al-Basra canal, causing Ahmed Jaber Karim ‘Ali to drown.(39)

In a further case, a court martial convicted three UK soldiers in February 2005 of abusing detainees in May 2003 at Camp Breadbasket, near Basra, and sentenced them to between 140 days and two years’ imprisonment.(40)

Members of the MNF have immunity from prosecution under Iraqi criminal and civil law, as stipulated by United Nations (UN) Security Council resolution 1546 (2004) with its attached exchange of letters between the Iraqi and US authorities. Investigations into human rights violations committed by the MNF in Iraq and the bringing to justice of those responsible, therefore, are entirely in the hands of their own national authorities. Amnesty International is concerned that military investigations and prosecutions in connection with human rights violations committed by members of the MNF may not meet international standards of impartiality.

Amnesty International considers that the torture and ill-treatment to which prisoners in Abu Ghraib prison and other places of detention controlled by occupying powers were exposed prior to the handover of power amounted to war crimes.(41) The organization continues to call on the governments whose troops have been involved in the military operations(42) in Iraq to ensure that there is no impunity for anyone found responsible for war crimes, regardless of position or rank.

Without charge or trial – detention by the Multinational Force
Since the invasion of Iraq in March 2003 tens of thousands of people have been detained by foreign forces, mainly the US forces, without being charged or tried and without the right to challenge their detention before a judicial body. Between August 2004 and November 2005 an administrative review board (the Combined Review and Release Board),(43) composed of representatives of the MNF and the Iraqi government, examined the files of almost 22,000 internees and recommended about 12,000 for release and another 10,000 for continued detention.(44) The vast majority of "security internees" - that is those individuals held in connection with the on-going armed conflict who are considered by the MNF to be a threat to security - have never been tried. According to statistical data compiled by the MNF, by the end of November 2005, the Central Criminal Court of Iraq had tried 1,301 alleged insurgents.(45)

In reference to the situation of detainees held by the MNF in Iraq, the UN Secretary General Kofi Annan stated in his report to the Security Council in June 2005: "One of the major human rights challenges remains the detention of thousands of persons without due process (…).Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency".(46) The US rejected the accusations claiming that all detainees had access to due legal process and their rights under the Geneva Conventions.(47)

The UN Assistance Mission for Iraq has also expressed concern about the situation of people interned by the MNF in Iraq, commenting in its Human Rights Report of September 2005: "Mass detentions of persons without warrants continue to be used in military operations by MNF-I. Reports of arbitrary arrest and detention continue to be reported to the Human Rights Office. There is an urgent need to provide remedy to lengthy internment for reasons of security without adequate judicial oversight".(48)

Most "security internees" are held at four detention facilities under US control, namely Camp Bucca near Basra, Abu Ghraib prison(49) in Baghdad, Camp Cropper in Baghdad and Fort Suse near Suleimaniya, which started operating at the end of October 2005.(50) In addition, US forces hold detainees temporarily in various brigade and division internment facilities throughout the country.(51)A small number of "security internees" are held in the custody of UK forces at the detention facility of Shu’aiba Camp, near Basra. According to the UK’s Foreign and Commonwealth Office, at the end of October 2005, the UK forces held 33 security internees, none of whom were women or children, in their detention facility at al-Shu’aiba.(52)

At the beginning of 2004 the Coalition Provisional Authority (CPA) headed by US ambassador Paul Bremer published a list of about 8,500 detainees on the Internet. However, the true figure of those then being held was believed to be much higher.(53) When the CPA was disbanded in June 2004, the number of detainees held by the Coalition Forces had fallen to about 6,400 persons, according to a US military official.(54) However, since the handover of power the number of detainees held by the MNF has increased steadily.

In November 2004, General Geoffrey Miller, then US head of Iraqi detainee operations, stated that about 8,300 detainees were held by the MNF.(55) On 1 April 2005, the US Department of State estimated the number of detainees at about 10,000 persons.(56) According to the official website of the MNF, at the end of November 2005 there were more than 14,000 security detainees held in MNF custody, distributed over the four main US controlled detention centres as follows: Abu Ghraib prison (4,710 detainees), Camp Bucca (7,365 detainees), Camp Cropper (138 detainees) and Fort Suse (1,176 detainees), as well as various military brigade and division internment facilities (650 detainees).(57)

Legal background to detentions by the Multinational Force
Following the US-led invasion in March 2003, Iraq was in a state of international armed conflict. Consequently, persons deprived of their liberty by the occupying forces were protected – in addition to applicable human rights law -- by international humanitarian law, namely the Third (Convention relative to the Treatment of Prisoners of War) or the Fourth (Convention relative to the Protection of Civilian Persons in Time of War) Geneva Conventions of 1949. The deprivation of liberty of a person which is ordered by the executive power without bringing charges against that person is referred to as administrative detention or internment. The Fourth Geneva Convention, applicable in situations of international armed conflict, states that internment "may be ordered only if the security of the Detaining Power makes it absolutely necessary".

With the handover of power in June 2004 the legal situation changed; since then Iraq is considered to be in a situation of non-international armed conflict with the MNF and the Iraqi security forces on one side and the insurgents on the other. Therefore, the Geneva Conventions no longer fully apply to persons detained in connection with the ongoing armed conflict. In this situation, all parties including the MNF, are bound by Article 3 common to the four Geneva Conventions, and by customary rules applicable to non-international armed conflicts, as well as human rights law. Article 3 common to the Four Geneva Conventions requires that those placed in detention are treated humanely, though it does not contain detailed provisions regulating such detention.

Since the handover of power, the MNF refer to UN Security Council Resolution 1546 as providing the legal basis for the MNF forces to hold people in detention in Iraq. Resolution 1546, with its attached exchange of letters between, for the US, Secretary of State Colin Powell and, for Iraq, Prime Minister, Ayad Allawi, confer on the MNF authority to resort to "internment where this is necessary for imperative reasons of security". Unfortunately, there is no reference in Resolution 1546 to the legal safeguards that are to apply to arrests, detention or internment carried out by armed forces and troops from countries contributing to the MNF. The UK and the US have stated, however, that their internment policies are also governed by Coalition Provisional Authority (CPA) Memorandum No. 3 (revised) of June 2004,(58) which sets out the process of arrest and detention of criminal suspects as well as procedures relating to "security internees" detained by members of the MNF after 28 June 2004.

This CPA Memorandum, which was revised only one day before the handover of power, details the authority of the MNF to detain people in Iraq. It elaborates some procedural details regarding detentions by the MNF and distinguishes between "criminal detainees" and "security internees".(59) With regard to criminal detainees the document stipulates: "(…) the MNF shall have the right to apprehend persons who are suspected of having committed criminal acts and are not considered security internees (hereafter: "criminal detainees") who shall be handed over to the Iraqi authorities as soon as reasonably practicable".(60)

The Memorandum established some basic rules for the detention of "security internees", concerning review procedures, access to internees and other aspects of their conditions, and the maximum period of internment of children.(61) CPA Memorandum No.3 provides that anyone who is interned for more than 72 hours is entitled to have the decision to intern them reviewed within seven days and thereafter at intervals of no more than six months. The Memorandum also states that the "operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention".(62)

Procedures set out in the CPA Memorandum and those which have been developed in practice are crucially flawed because they fail to meet international human rights standards guaranteeing the rights of detainees –including, notably, the right to have access to legal counsel and the right to challenge the lawfulness of the detention before a court.

In addition to the provisions of international humanitarian law related to non-international armed conflict set out above, human rights law remains applicable to Iraq. The US, the UK and Iraq are all states parties to the International Covenant on Civil and Political Rights (ICCPR), which provides basic safeguards for the protection of detainees. As affirmed by the UN Human Rights Committee (the expert UN body responsible for overseeing the implementation of the ICCPR), international humanitarian law and human rights law fully complement one another during times of armed conflict.(63) The relevant treaties governing non-international armed conflict(64) do not contain specific rules regarding questions such as for what duration and under what procedures (Protocol II explicitly accepts internment but does not regulate it), persons may be interned. It is human rights law that squarely addresses this question.

Amnesty International considers the MNF system of security internment in Iraq to be arbitrary - in violation of fundamental human rights. All detainees, including security internees, are protected by Article 9 of the ICCPR, which provides that no-one should be subjected to arbitrary detention and that deprivation of liberty must be based on grounds and procedures established by law (para 1). Detainees must also have access to a court empowered to rule without delay on the lawfulness of their detention and to order their release if the detention is found to be unlawful (para 4).(65) These requirements apply to "anyone who is deprived of his liberty by arrest or detention" and therefore apply fully to those interned by the MNF.

The ICCPR (under Article 4) does allow for derogation of some provisions of the Covenant during proclaimed states of emergency, including at a time of armed conflict. However, measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. The Human Rights Committee has emphasized that "States parties may in no circumstances invoke Article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance …. through arbitrary deprivations of liberty ".(66) Neither the US nor the UK governments, however, have taken the steps necessary formally to derogate from any of their obligations under the ICCPR (which derogation requires that governments notify the Human Rights Committee formally of their intention to derogate from relevant ICCPR provisions).

At all times, internees must be provided the right to an effective remedy (ICCPR Article 3(2)), including habeas corpus, so that a court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful (Article 9(4)). (67) A person detained on suspicion of criminal activity must be brought promptly before a judge (ICCPR Article 9(3)) and either released or provided a fair trial before an independent and impartial tribunal established by law (ICCPR Article 14).

Review process

Jawad M (68), an Iraqi national who worked for the US forces at military bases in Baghdad, was detained by US forces in August 2004. In October 2004 he received a document from the Office of the Deputy Commanding General, Detainee Operations, Multinational Force-Iraq which informed him about an upcoming review session and included the following one-sentence accusation: "Gathering of information on interpreters and employees with the Multinational Force". No further explanation or reference to any relevant legislation was provided. He was not charged or tried. Reviews of his case were conducted by an administrative body before which he was not permitted to appear. Following his release from Abu Ghraib prison at the beginning of 2005, Jawad M told Amnesty International that he still did not know the reasons for his internment. He said: "It was useless. I was there for five months and I knew that nobody can do anything. Until now I don’t know why they sent me to the prison and why I was released and whose decision that was."

The case of Jawad M illustrates the way in which many internees are detained arbitrarily by the MNF. In violation of international human rights law, tens of thousands of internees have been held for weeks or months and thousands for more than one year without being charged or tried and with no right to challenge the lawfulness of their detention before a judicial body. They have received no information regarding the grounds for their detention, whether they will be charged and brought to trial or, if not, for how long they are likely to be detained.

As detailed below, the US and UK have established separate systems for reviewing cases of internees held by their respective forces. Both systems have in common that they fail to meet international human rights law and standards - including the requirement for court oversight of the detention. Despite the involvement of consultative bodies in the process, the ultimate decision about the release or continued internment of a person lies with military commanders.

Review for internees held by the US forces
The MNF’s internment procedures were criticised by Iraqi Justice Minister ‘Abd al-Hussain Shandal in September 2005. Speaking to Reuters news agency, he complained: "No citizen should be arrested without a court order (…) There is abuse [of human rights] due to detentions, which are overseen by the Multinational Force (MNF) and are not in the control of the Justice Ministry".(69)

Since the handover of power in mid-2004, however, the Iraqi authorities have participated in reviewing cases of internees held by the MNF in line with changes announced by the US Department of Defense in August 2004. (70)

After the handover, a body called the Combined Review and Release Board (CRRB) was established, comprising two representatives each from the Iraqi ministries of Justice, the Interior and Human Rights and three MNF officers. This body reviews the cases of internees and makes recommendations regarding their release or continued detention – according to Human Rights Ministry officials these recommendations are made by majority and none of the board’s members has a power of veto – but its recommendations are not binding and it is the MNF’s Deputy Commanding General for Detainee Operations who decides whether or not a detainee should be released after first consulting Iraq’s Minister of Justice.(71)

The US government’s 2005 report to the UN Committee against Torture provided the following description of the detention review process: "Upon capture by a detaining unit, a detainee is moved as expeditiously as possible to a theater internment facility. A military magistrate reviews an individual’s detention to assess whether to continue to detain or to release him or her. If detention is continued, the Combined Review and Release Board assumes the responsibility for subsequently reviewing whether continued detention is appropriate."(72)

CPA Memorandum No. 3 stipulates that the review within seven days must be followed by further reviews at intervals of no more than six months. In practice, these appear generally to be respected with some reviews being done at more frequent intervals. In considering cases, the CRRB has three possible options to recommend: unconditional release, release with a suitable guarantor from the detainee’s community, or continued internment. Neither the internee nor his or her legal counsel are permitted to be present during these case reviews, though internees have reportedly been encouraged to make submissions to the CRRB in writing.

Between the establishment of the CRRB in August 2004 and 28 November 2005, the CRRB reviewed the files of 21,995 internees, of whom 4,426 were recommended for unconditional release, 7,626 for release with a guarantor and 9,903 for continued internment.(73) According to the US Department of Defense, the CRRB when making a decision is to take into consideration the "circumstances of the detainee’s capture, the length of detention prior to review, the level of cooperation by the detainee, and the detainee’s potential for further acts of anti-Iraqi misconduct if released".(74)

In its report to the UN Committee against Torture, the US government referred to the practice of having a military magistrate conduct the initial review within seven days, but such reviews appear generally to be paper-based reviews, in which the internee’s file is considered without his being present.

In one case that received considerable media attention, however, a security internee was permitted to be present during the review of his detention conducted by US military officers. But the review procedure followed in the case of 44-year-old US national Cyrus Kar, a filmmaker, differed from the normal procedure. Kar and his cameraman, Farshid Faraji, were detained on 17 May 2005 by Iraqi security forces while riding a taxi in Baghdad. Whilst Farshid Faraji was held for almost two months in detention by the Iraqi authorities, Cyrus Kar was handed over to the US forces. Kar was denied access to a lawyer during his detention but on 4 July 2005 he was brought before a review board composed of three US military officers. He was released on 10 July, after which he commented: "I couldn’t have more respect for the rank-and-file soldiers, but the system is broken. When an Iraqi is detained there, he comes out angry and wanting payback".(75)

Review for internees held by the UK forces
Cases of detainees interned by UK forces are reviewed by the Divisional Internment Review Committee (DIRC), which is composed entirely of MNF officials. Its members are the UK military chief of staff, another senior officer, the chief legal officer and another legal officer and the chief political advisor.(76) However, the final decision as to whether a detainee should continue to be interned or released rests with the Governing Officer Commanding (GOC).

The initial review has to take place within 48 hours(77) of internment and thereafter monthly.(78) An interned person may address written submissions to the DIRC, but neither the internee nor his or her legal representative may be present when the DIRC reviews the internee’s case.

The GOC informs internees in writing, stating the reasons, when it is determined that they should continue to be interned. However, Amnesty International is concerned that even after months of internment the MNF continues to hold internees without providing them or their legal counsel with substantive evidence to justify their detention.

For example, a 48-old dual national with UK and Iraqi citizenship, Hillal ‘Abdul Razzaq ‘Ali al-Jedda, has been detained since his arrest on 10 October 2004 in Baghdad. He filed a case against the UK Secretary of State for Defence challenging his internment in Iraq which was dismissed by the High Court of England and Wales on 12 August 2005. However, the court noted that "Although detained for imperative reasons of security, the claimant has not been charged with any offence; and the Secretary of State acknowledges that, as matters stand, there is insufficient material available which could be used in court to support criminal charges against him. The claimant is therefore detained simply on a preventive basis."(79) In mid-February 2006, Hillal ‘Abdul Razzaq ‘Ali al-Jedda continued to be held without charge or trial by UK forces. In January 2006, an appeal against the decision of the High Court was heard in the Court of Appeal of England and Wales but judgment was still awaited in mid- February.

Length of internment
Different provisions exist for detainees held by the MNF since before the mid-2004 transfer of power to a new Iraqi government and those detained since that time. Detainees in the first category may be held indefinitely, whereas those detained and interned since 30 June 2004, according to CPA Memorandum No. 3, "must be either released from internment or transferred to the Iraqi criminal jurisdiction no later than 18 months from the date of induction into an MNF internment facility."

This requirement of release after 18 months is not absolute, however. Even the detainees interned after the handover can be held for more prolonged periods at the approval of the Joint Detention Committee (JDC). This requires that an application for further internment is made to the JDC two months before the expiry of the initial internment period of 18 months; if the JDC sanctions continued internment it must specify the duration. According to the Human Rights Annual Report 2005 of the UK Foreign and Commonwealth Office, published in July 2005, the JDC had still to be convened for UK-held internees because none of them by then had been held for as long as 18 months.(80) In mid-February 2006 an application for the extension of internment beyond 18 months of 266 detainees had been made to the JDC.(81)

Amnesty International is concerned about hundreds of security internees who have been detained by the MNF since before the handover of power and may be held indefinitely. In a letter to Amnesty International dated 19 February 2006, Major General Gardner, commander of Task Force 134, which is in charge of MNF detention operations, stated that at the end of 2005 the number of security internees held for more than 18 months was estimated to be 751.(82) The letter confirmed that approval by the JDC to keep an internee beyond 18 months is only required for those "internees detained after 30 June 2004". (83)

Amnesty International considers indefinite internment as practiced by the MNF with regard to security internees held since before the handover of power to be unlawful. According to The UN Working Group on Arbitrary Detentions (established by the UN Commission on Human Rights): "With regard to derogations that are unlawful and inconsistent with States’ obligations under international law, the Working Group reaffirms that the fight against terrorism may undeniably require specific limits on certain guarantees, including those concerning detention and the right to a fair trial. It nevertheless points out that under any circumstances, and whatever the threat, there are rights which cannot be derogated from, that in no event may an arrest based on emergency legislation last indefinitely, and it is particularly important that measures adopted in states of emergency should be strictly commensurate with the extent of the danger invoked."(84)

Amnesty International also considers that indefinite internment may constitute a violation of the prohibition on torture and other cruel, inhuman or degrading treatment or punishment. Any deprivation of liberty, even when carried out in accordance with international humanitarian law, inevitably causes some stress or a degree of mental suffering to the internee and his or her family, although this will not automatically render the deprivation unlawful. However, Amnesty International is concerned that the "security internees" held by the MNF, are being deprived of their liberty in circumstances that cause unnecessary suffering, such as indefinite and incommunicado detention, that cannot be justified as an unavoidable part of a "lawful sanction".(85) The UN Committee against Torture has found that administrative detention by a party to an armed conflict may constitute cruel, inhuman or degrading treatment or punishment, based inter alia on its excessive length(86) In addition, the Human Rights Committee has referred to prolonged, indefinite "administrative detention" as incompatible with Article 7 of the ICCPR, which prohibits, among other things, torture and cruel, inhuman or degrading treatment or punishment.(87)

Indefinite detention causes uncertainty and mental anguish for many internees in Iraq - some of whom have been held for more than two years. Many relatives of detainees with whom Amnesty International has been in regular contact have expressed their despair. For example, in January 2006 the organization received the following email communication sent by a man whose brother had been held for almost two years:

"Thank you for your e-mail and your concern about my brother. There is no change and no development in the case. And it is very difficult to visit him because he is now in Basra. And there are a lot of problems facing Sunnis who go to Basra in order to visit their relatives. Besides it is very difficult to get permission from American soldiers to visit him. And there isn’t any charge. Now we lost the hope to get him again."

The number of long-term detainees has reportedly increased since September 2005. According to the Iraqi Human Rights Ministry, on 28 September 2005 there were 1,443 detainees held by MNF for more than one year. However, according to figures provided by US officials, in early November 2005 among the nearly 13,900 detainees held by the MNF there were some 3,800 who had by then been held for more than one year and more than 200 who had been held for more than two years.(88)

Amnesty International knows of internees who at the beginning of 2006 had been held for more than two years without having been charged or tried. For example, Kamal Muhammad ‘Abdullah al-Jibouri, a 43-year-old former soldier married with 11 children, continued to be held in early February 2006, after some two years in detention without charge or trial. He was detained on 5 February 2004 by US troops in the al-Khusum village of the Salaheddin governorate. He was held at Abu Ghraib prison initially, but transferred to Camp Bucca, near Basra, in May 2005. Since his transfer, it has become particularly difficult for his relatives to visit him. Two relatives of Kamal Muhammad ‘Abdullah al-Jibouri, both aged about 40, were also detained by US troops on 5 February 2004 in al-Khusum village. At least one of the two was reportedly transferred at the end of 2005 to Fort Suse, near Suleimaniya in northern Iraq. As of February 2006, both men, like Kamal Muhammad ‘Abdullah al-Jibouri, continued to be held without charge or trial.

Treatment of internees
Although the US authorities introduced various measures to safeguard prisoners after the Abu Ghraib prison scandal, there continue to be reports of torture or ill-treatment of detainees by US troops. In September 2005 several members of the US National Guard’s 184th Infantry Regiment were sentenced to prison terms in connection with torture or ill-treatment of Iraqis who had reportedly been detained in March 2005 following an attack on a power plant near Baghdad. (89) According to media reports the abuse involved the use of an electro-shock gun on handcuffed and blindfolded detainees.(90) The Los Angeles Times referred to a member of the battalion having reported that "the stun gun was used on at least one man’s testicles". (91)

The abuse was investigated after a soldier who was not involved in the mistreatment discovered film footage showing parts of the abuse on a laptop computer. At least twelve soldiers from the National Guard’s 184th Infantry Regiment were charged with misconduct "relating to abuse and maltreatment of detainees". Three sergeants were sentenced to between five and twelve months of imprisonment and four other soldiers were sentenced to hard labour. (92)

In another incident, five soldiers from the 75th Ranger Regiment were charged before a court martial in connection with allegations of detainee abuse. The case arose from an incident on 7 September 2005 when three detainees were allegedly punched and kicked by the five US soldiers as they were awaiting movement to a detention facility.(93) On 21 December 2005 it was announced that the five soldiers had been sentenced to be confined for periods ranging from 30 days to six months and reductions in rank.(94)

Amnesty International has noted that in the above cases, US officials have apparently taken swift action to investigate the allegations of abuse and to prosecute the perpetrators. However, given that torture or ill-treatment have continued, the organization is concerned that insufficient safeguards have been put in place in order to protect detainees from the recurrence of abuse.

Amnesty International has interviewed former detainees and relatives of detainees held by the MNF about treatment of detainees after the handover of power in June 2004. In one reported incident an electro-shock gun (taser) was used against detainees in circumstances which violate international human rights law prohibiting torture or ill-treatment. According to an eye-witness in November 2005 a US guard at Camp Bucca used a taser against two detainees while they were being transferred in a vehicle to a medical appointment within the detention facility, shocking one on the arm and the other on his abdomen.

Electro-shock weapons have been developed as a non-lethal force option to be used to control dangerous or combative individuals. Amnesty International considers that electro-shock weapons are inherently open to abuse as they can inflict severe pain without leaving substantial marks, and can further be used to inflict repeated shocks.

Under CPA Memorandum No. 3, the MNF was required to ensure that conditions and standards in all of its internment facilities satisfy Section IV of the Fourth Geneva Convention, (95) which sets out standards for the treatment of detainees, including in relation to food, hygiene and the provision of medical attention, as well as contact with the outside world and penal and disciplinary sanctions.(96)

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