[Documents/Docheader.htm]The Council of Europe’s contribution to the settlement of the situation in Iraq
Doc. 10230
22 June 2004Opinion[1]
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Christos Pourgourides, Cyprus, Group of the European People's Party
I. Conclusions of the Committee
1. The Committee on Legal Affairs and Human Rights welcomes and supports the draft resolution presented by the Political Affairs Committee. It agrees that human rights and the rule of law are fundamental to establishing stable and durable democratic government in Iraq.
2. In recent weeks, however, the world’s attention has been held by various allegations of serious violations of human rights and humanitarian law committed by Coalition Forces (the Multinational Force, or MNF) in Iraq, in particular by members of the American and British contingents. The MNF will remain in Iraq after power is transferred at the end of June and, with 20 member states engaged, the involvement of Council of Europe member States in the MNF will continue to amount to one of the most important European contributions to the settlement of the situation in Iraq. It is essential that this contribution is made in full compliance with the standards and principles of the Council of Europe.
3. It is crucial for the future stability and security of Iraq that all past violations be properly investigated and that those responsible, whatever their nationality, position or rank, be held fully accountable. At the same time, bearing in mind that the MNF will remain in Iraq for the foreseeable future and will thus continue to be perhaps the most visible external actor, it is vital that every effort is made to prevent their repetition. An ancillary concern is to avoid such misconduct in future in any other international military and security operations.
4. The Committee on Legal Affairs and Human Rights therefore proposes the following amendments to the report of the Political Affairs Committee, reflecting the significance of the relevant issues not only to the European contribution to the settlement of the situation in Iraq but also for general respect for and maintenance of international law.
II. Proposed amendments
Amendment A
After paragraph 5 of the draft resolution, add a new paragraph:
“In the months preceding the transfer of power, however, the world’s attention has been held by various serious violations of human rights and humanitarian law committed by Coalition Forces (the Multinational Force, or MNF) in Iraq, in particular by members of the US and British contingents. The Assembly deplores and condemns all such violations unreservedly.”
Amendment B
After paragraph 12 of the draft resolution, add a new paragraph:
“The Assembly calls upon those of its member states that are engaged in the MNF to:
i. ensure that their forces and agents, including private contractors, fully and effectively respect international humanitarian, human rights and criminal law, according to the established, generally-accepted definitions, in all circumstances;
ii. in particular, ensure that detainees are afforded the appropriate status and treated according to the provisions of international humanitarian law relevant to that status, as well as of applicable international human rights law, publish a comprehensive list of all places of detention, and allow full and unhindered access by international organisations to all places of detention;
iii. ensure that all human rights abuses and offences under international humanitarian and criminal law are promptly and independently investigated and their perpetrators brought to trial in accordance with international standards, so that they may be subjected to appropriate administrative or criminal sanctions fully reflective of the gravity of their misconduct. In particular, they must ensure that neither public officials nor private contractors – whether legal or natural persons – are immune from legal process ensuring full accountability;
iv. ensure that effective remedies are available for violations and that full reparation, including adequate compensation, is made to the victims or to their families;
v. accept the full applicability of the European Convention on Human Rights to the activities of their forces in Iraq, insofar as those forces exercised effective control over the areas in which they operated;
vi. accept the jurisdiction of the International Criminal Court (ICC) over their forces and agents present in Iraq, regardless of the existence of a UN mandate. Furthermore, they should refrain from seeking immunity from prosecution before the ICC for their forces and agents;
vii. ratify the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”
Amendment C
Replace sub-paragraph 13.ii. of the draft resolution by the following sub-paragraphs:
“ensure that the general principles of international humanitarian, human rights and criminal law underlying these recommendations are, in accordance with the established, generally-accepted definitions, fully respected in any future military operations, whether or not conducted under a United Nations mandate. In particular, states should ensure that appropriate guidelines and procedures exist and operate effectively within armed forces and related bodies to safeguard against breaches of these principles;
ensure that their domestic criminal legislation fully reflects the provisions of international human rights and criminal law and that violations are investigated, prosecuted and punished promptly and in accordance with international fair trial standards, in full respect of the positive obligations to protect human rights and of the principle that offences under international criminal law must always be tried and punished. Those states that have not yet ratified the Rome Statute should do so at the earliest opportunity and those that have should refrain from entering into bilateral immunity agreements. Where relevant, all states should oppose any moves in the UN Security Council to exempt those engaged in UN-mandated military operations from the jurisdiction of the ICC.”
Amendment D
Replace paragraph 15 with the following:
“The Assembly considers this matter of highest importance and resolves to be seized of the questions, firstly, of construction of a fully functioning democracy and secondly, of respect for human rights and the rule of law, until the normalisation of the situation in Iraq.”
III. Explanatory memorandum
by Mr Pourgourides, Rapporteur
A. Introduction
1. The Coalition Forces website lists the following Council of Europe member States as participating in the Multinational Force (MNF) in Iraq: Albania, Bulgaria, the Czech Republic, Denmark, Estonia, Georgia, Hungary, Italy, Latvia, Lithuania, Macedonia, Moldova the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Spain, Ukraine and the United Kingdom. Most significant of these was the United Kingdom, both on account of its size and because it commands the Multi-National Division (South-East) consisting also of Czech, Danish, Dutch, Italian, Lithuanian, Norwegian, Portuguese and Romanian forces, along with troops from New Zealand. Turkey also has a military presence in northern Iraq. The overwhelming majority of the MNF comes from the USA, which commands the military presence in the greater part of Iraq.
2. Despite the proclamation of an end to hostilities, many parts of Iraq remain tense, dangerous and violent and still present considerable problems to the MNF attempting to ensure its stability and the security of its population. Irregular armed groups continue to launch bloody and unpredictable attacks. As a result, large numbers of Iraqis, mainly civilians, have been detained in facilities controlled and administered by the MNF.[2] The International Committee of the Red Cross (ICRC) understands that, in Iraq, only the USA and the UK detain individuals protected by the 3rd and 4th Geneva Conventions (i.e. POWs and civilians).
3. Some of the most serious allegations of human rights abuses to have taken place since the end of open hostilities involve conditions in these detention centres and the treatment of those held in them. The most publicised of these relate to the Abu Ghraib prison, already notorious in Iraq as a place where the regime of Saddam Hussein carried out torture, and since its fall administered by US forces as a centre for “security” detainees. Other contentions concern unlawful killings of civilians, arbitrary arrest and detention without judicial control, destruction of property and the related problem of impunity or of opacity of justice. Extensive details of the allegations can be found in reports prepared by inter alia the UN High Commissioner for Human Rights,[3] Amnesty International [4] and Human Rights Watch.[5] This report bases itself on these sources. Further details of these allegations can be found in Annex I.
B. The legal framework
4. The past, present and future conduct of the MNF in Iraq is subject to a range of provisions of international humanitarian, human rights and criminal law. These provisions establish standards and definitions for general application, and impose various obligations, both negative and positive, on states. Further details of these provisions can be found in Annex II.
C. Resolutions of the Parliamentary Assembly
5. The Rapporteur recalls Assembly Resolution 1326 (2003) on Europe and the war in Iraq. This called on the belligerents inter alia to respect the laws of war, to comply with the Geneva Conventions and to protect civilians and strictly to respect humanitarian law, and reminded the belligerents that they may be required to answer for any crimes against humanity or war crimes committed. It also called on member States to reaffirm their commitment to the basic principles of international law.
6. In Resolution 1340 (2003) on the rights of persons held in the custody of the United States in Afghanistan or Guant�namo Bay, the Assembly urged the United States to bring conditions of detention into conformity with internationally recognised standards and to ensure proper application of the Geneva Conventions. The Rapporteur believes that the same basic principles apply to detention in Iraq, and deplores the fact that, despite Resolution 1340, similar concerns have arisen with respect to US activities there.
7. The situation in the Chechen Republic involves instability and insecurity, human rights abuses and impunity as the background to attempts to establish a democratic regime. The Assembly’s conclusions in Resolution 1323 (2003) on the human rights situation in the Chechen Republic also have some applicability to the situation in Iraq: respect for human rights is vital to establishing and maintaining peace, to any political solution and to national reconciliation; and impunity is the main reason for the persistence of human rights abuses.
8. Committee of Ministers Resolution No. R(93)26 on Observer Status requires that an Observer State must be “willing to accept the principles of democracy, the rule of law and the enjoyment of all persons within its jurisdiction of human rights and fundamental freedoms.” As was the case with the death penalty,[6] the Rapporteur believes that any continuation or repetition of the abuses and violations mentioned in the present report is inconsistent with Observer status and calls on the USA to consider its position accordingly.
D. Conclusions and recommendations
9. It can readily be seen that certain of the actions of the MNF may amount to violations of international humanitarian and human rights law, and may even constitute offences under international criminal law. Responsibility for these actions in some instances would appear to extend far up the chain of command. It is essential that all those responsible, whatever their position of authority, be dealt with appropriately in accordance with the relevant international law.
10. On the basis of the factual background and legal framework described above, therefore, the Rapporteur would make the following recommendations to all member and Observer States contributing to the MNF:
i. ensure that their forces and agents, including private contractors, fully and effectively respect international humanitarian, human rights and criminal law, according to the established, generally-accepted definitions, in all circumstances;
ii. in particular, ensure that detainees are afforded the appropriate status and treated according to the provisions of international humanitarian law relevant to that status, as well as of applicable international human rights law, publish a comprehensive list of all places of detention, and allow full and unhindered access by international organisations to all places of detention;
iii. ensure that all human rights abuses and offences under international humanitarian and criminal law are promptly and independently investigated and brought to trial in accordance with international standards, in order that the perpetrators be subjected to appropriate administrative or criminal sanctions fully reflective of the gravity of their misconduct. In particular, they must ensure that neither public officials nor private contractors – whether legal or natural persons – are immune from legal process ensuring full accountability;
iv. ensure that effective remedies are available for violations and that full reparation, including adequate compensation, is made to the victims or to their families;
v. accept the jurisdiction of the ICC over their forces and agents present in Iraq, regardless of the existence of a UN mandate. Furthermore, they should refrain from seeking immunity from prosecution before the ICC for their forces and agents.
11. The Rapporteur would also recommend to member states contributing to the MNF to accept the full applicability of the European Convention on Human Rights to the activities of their forces in Iraq, insofar as those forces exercised effective control over the areas in which they operated.
12. Furthermore, the Rapporteur would recommend that all member and Observer States:
i. ensure that the general principles of international humanitarian, human rights and criminal law underlying these recommendations are, in accordance with the established, generally-accepted definitions, fully respected in any future military operations, whether or not conducted under a United Nations mandate. In particular, they must ensure that appropriate guidelines and procedures exist and operate effectively within armed forces and related bodies to safeguard against breaches of these principles;
ii. ensure that their domestic criminal legislation fully reflects the provisions of international human rights and criminal law, and that violations are investigated, prosecuted and punished promptly and in accordance with international fair trial standards, in full respect of the positive obligations to protect human rights and of the principle that offences under international criminal law must always be tried and punished. Any states that have not yet ratified the Rome Statute should do so at the earliest opportunity, and those that have should refrain from entering into bilateral immunity agreements. Where relevant, all States should oppose any moves in the UN Security Council to exempt those engaged in UN-mandated military operations from the jurisdiction of the ICC.
13. Finally, the Rapporteur considers that the Assembly, and in particular its Committee on Legal Affairs and Human Rights, should remain seized of the question of respect for human rights and the rule of law in Iraq, until the normalisation of the situation there.
APPENDIX I
Details of alleged human rights violations
i. Torture and cruel and inhuman treatment and punishment
1. In July 2003, Amnesty International and other human rights INGOs first made allegations of ill-treatment of detainees; Special Representative Sergio Vieira de Mello later raised concerns with the CPA. The matter achieved a far higher profile, however, in April 2004, when American news media published photographs of detainees being ill-treated and humiliated by US troops. These were followed by articles concerning a classified US military report (the “Taguba” report, so-called after its author), which found that institutional failures in the Army’s prison system raised serious problems, and a confidential report by the International Committee of the Red Cross (ICRC), which had summarised a series of humanitarian concerns regarding the activities of the MNF. Subsequent revelations involved also British troops.
2. This category of human rights abuse is particularly appalling: whilst in the case of unlawful killings, for example, one might point to mistake, confusion or the pressure of circumstances as mitigating factors, such considerations do not apply when the victims are entirely at the mercy of the perpetrators. Furthermore, there may be exacerbating factors: first, that a legal and institutional culture predisposed towards ill-treatment of detainees had been allowed to develop or even been promoted; and second, that command structures failed to prevent such events even after they had been brought to official and public attention.
3. In brief, the main allegations of torture or of cruel and inhuman treatment and punishment include the following.
i. In Abu Ghraib prison, administered by the USA, detainees suffered various forms of physical and sexual assault, physical and sexual humiliation, sensory deprivation and hyper-stimulation, deprivation of sleep, food and water, prolonged physical restraint, enforced physical and psychological stress, threats of extreme torture, threats against relatives and threats to life.[7]
ii. At Camp Buca, US military police beat prisoners and encouraged others to do the same.
iii. In Baghdad airport’s Camp Cropper detention facility, detainees suffered prolonged physical restraint, enforced physical and psychological stress, sensory deprivation and hyper-stimulation and physical beatings at the hands of US soldiers.
iv. A US marine serving at Camp Whitehorse detention centre near Nassiriya has asserted that beating uncooperative prisoners was common practice there.
v. At an unknown location in the vicinity of al-Rutba, detainees were forced to walk long distances with their arms tied behind their backs, and suffering beatings, electric shocks, suspension by the legs, sexual abuse, sleep deprivation and sensory hyper-stimulation, at the hands of US and Iraqi forces.
vi. In Basra, British soldiers administered prolonged beatings to detainees and subsequently denied them prompt medical treatment for the injuries caused; other detainees report torture being routine during interrogations conducted by British.
vii. There were also reports of serious ill-treatment, including prolonged restraint, hooding and beating, of detainees by British troops in the Umm Qasr detention centre.
ii. Unlawful killing
4. There have also been numerous allegations of killings of civilians by MNF forces – mainly US and British – in circumstances which suggest unlawfulness due to the use of excessive force where there was no immediate threat to the safety of the troops involved. In addition it has been estimated that over 10,000 civilians have died as a result of military operations aimed at military targets.[8]
i. Various incidents of unlawful killing have been reported to have occurred as a result of torture and ill-treatment by British forces at Camp Steven in Basra.
ii. British forces are alleged to have used unjustifiable lethal force during security operations including check-points, foot patrols, house searches and the maintenance of public order during demonstrations, as well as by mistakenly identifying as threats the public discharge of weapons during funerals and wedding celebrations. The victims of these shootings have included children and the elderly.
iii. US forces are also alleged to have killed detainees as a result of torture and ill-treatment, including at a detention facility at Al Qain, at Forward Operating Base Rifles near al-Asad and at Camp Whitehorse detention facility.
iv. Equally, there have been credible reports of unlawful killings by US forces of civilian individuals in connection with searches, operations to maintain public order, check-points and the mistaken perception of threats or attacks.
iii. Arbitrary detention
5. Whilst the investigation and prosecution of those who committed crimes under the Saddam Hussein regime, of those suspected of committing offences since the US-led invasion, and indeed the current climate of violence and insecurity generally might be expected to generate an unusually large population of detainees, these considerations cannot justify the use of arbitrary detention. It must be recalled that ill-treatment is far more likely to occur in arbitrary detention than in detention which is properly regulated. Aspects of the right to liberty and security which are alleged to have been breached in facilities both under US and British control include the following:
i. failure to inform promptly and in a language understood by the detainee the reasons for arrest and detention;
ii. failure to bring charges within a reasonable time;
iii. failure to bring to trial within a reasonable time, or to be released;
iv. failure to allow detention to be challenged before a competent tribunal, or failure to implement judicial rulings to release;
v. failure to allow access to legal representation or to family, or even to inform family members of the detainee’s whereabouts;
vi. potentially indefinite detention for belonging to vague categories such as “suspected terrorist” or “security detainee”.
6. It also appears that the rights of those detained by the MNF are less well-protected than those of persons detained by Iraqi officials; for example, the MNF may hold detainees for 90 days before they must be brought before a judge, whereas those detained by Iraqi officials must have their case reviewed within 24 hours. Furthermore the ICRC does not appear to have been given adequate access to or information on detainees, notably concerning exact figures on releases and the whereabouts of those transferred from Abu Ghraib pending its closure.
7. The 40 or so leading members of the former regime featured on the US’ “pack of cards” who have so far been arrested, including Saddam Hussein, are believed to be held in solitary confinement in Camp Cropper. None have yet been charged, nor allowed access to lawyers; only a few have been allowed family visits. Whilst it appears that there are difficulties in finding witnesses prepared to give evidence against them, this does not abrogate the USA from respecting the right to trial within a reasonable time, or to release. The ICRC has recently demanded that, since the USA defines Saddam Hussein as a prisoner of war (POW), international humanitarian law requires that he (along with all other POWs) either by charged or released once the USA ceases to be an occupying power on 30 June. The new Iraqi prime minister has stated that Saddam Hussein and the other detained members of his regime will soon be transferred from US to Iraqi custody, for trial before the Special Tribunal (see below).
iv. Destruction of property
8. There have also been reports of large scale destruction of civilian property. Whilst much of this has been the unintended result of legitimate military activities, on many occasions houses, furniture and vehicles suffered unnecessary or excessive damage during searches. There have even been instances when entire houses were destroyed in apparent retaliation for anti-MNF attacks, with reports of officers stating publicly that the homes of those involved in attacks against the MNF would be destroyed in reprisal. In addition, there have been reports of MNF members appropriating property and money during searches in circumstances that do not suggest legitimate confiscation. There have also been numerous reports of grossly negligent driving of MNF tanks and armoured vehicles on public highways, resulting in damage to civilian vehicles on occasion personal injury.
v. Access to health care
9, The MNF has occupied hospitals for its own use, resulting in inadequate health care facilities being available to the civilian population, as for example in Falluja and in Najaf. Further problems are caused by military check-points outside hospitals, although it must be acknowledged that insecurity inside hospitals, including attacks by armed groups on their opponents, has been a problem. Civilians have been deterred from attending hospitals on account of this, as well as by general insecurity in the streets outside.
vi. Accountability and impunity
10. Iraq is at a crucial stage in its development from a cruel dictatorship to a democracy governed by the rule of law in which human rights are respected and protected. The Iraqi Governing Council has already established a Special Tribunal to try senior members of the former regime for crimes under international law and designated offences under Iraqi law. So as to set a good example and to avoid charges of double standards or hypocrisy, therefore, it is essential that any offences committed by members of the MNF do not go unpunished.
11. In this context, it is encouraging to see that both the US and British authorities have recently made positive moves in connection with the allegations of human rights abuses committed by their forces. President Bush and Prime Minister Blair have both condemned the outrages, and the Commander of US forces in Iraq has reportedly prohibited virtually all coercive interrogation techniques. On 20 May the first of seven US soldiers facing courts martial was sentenced, to one year in military prison, reduction in rank and discharge. On 14 June the British Attorney General stated that all British soldiers serving in Iraq were liable to trial by court martial for offences contrary to British criminal law, a jurisdiction which includes war crimes, torture and unlawful killings abroad. As of 8 June, 75 cases of unlawful killing, assault or ill-treatment of civilians by British soldiers were being investigated; four had so far been referred to the Army Prosecuting Authority, with their trials due to begin in mid-June, and four more were likely to be referred for prosecution in the near future. An additional case, which had previously been dismissed by a senior officer, had been referred for further consideration to the Crown Prosecution Service.
12. By contrast, the media have reported on an official US Defense Department document which stated that the President’s “ultimate authority” over the conduct of war was unfettered even by domestic criminal laws, such that the prohibition of torture “must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority”. The document asserted that harsh measures were permissible so long as not “specifically intended” to inflict “severe mental pain or suffering”, even if an interrogator knew that severe pain would result from his actions. Following these reports, the Defense Secretary sought to dispel allegations that torture was in effect official US policy, stating that neither he nor the President had any doubt about the definition of torture, which was not permitted either under US or humanitarian law. He also suggested, however, that the definition which he gave to “torture” was one that others might disagree with; similarly, the US administration has presented an ambivalent position on the acceptability or otherwise of cruel, inhuman or degrading treatment or punishment. Given the administration’s sophisticated and self-serving definitions of US jurisdiction and the applicability of international humanitarian law to its actions, this response leaves open the possibility that the US administration is instructing US forces to use methods which do not meet its own definition of torture, but which would fall foul of the definition given under international law, or of any arguable definition of cruel, inhuman or degrading treatment or punishment.[9] Such an application of lesser standards would in effect result in impunity.
13. A further concern in relation to the accountability of agents of the MNF and CPA is that not all those involved in security matters, including the detention and interrogation of prisoners, are members of regular armed forces: indeed, it has been suggested that there are more employees of private military contractors in Iraq than British forces, making this the second largest “contingent” after the United States. Such privately-employed individuals were strongly implicated in the torture allegations surrounding Abu Ghraib prison. Their legal status gives rise to serious problems of accountability, since they are both immune to Iraqi jurisdiction and outside the jurisdiction of MNF national courts martial. Accordingly, it appears to have been impossible to prosecute employees of private contractors even in the light of weighty evidence of serious criminal misconduct.
ANNEX II
International humanitarian law (IHL)
1. The principle IHL instruments applicable to the situation of military occupation in Iraq are the 1907 Hague Regulations respecting the laws and customs of war on land, the 3rd and 4th Geneva Conventions of 1949 (respectively concerning prisoners of war and civilians) and Protocols I and II of 1977 to the Geneva Conventions (on victims of international and non-international armed conflicts). Together, these instruments set out certain definitive, basic standards of conduct, which must be respected by the MFN and CPA in Iraq.
i. Occupying forces must take all measures in their power to restore and, so far as possible, ensure public order and safety, and must exercise due diligence in preventing crime regardless of the extent or capabilities of the means at their disposal. They must also ensure public health and sanitation and the provision of food and medical supplies.
ii. Civilians are entitled in all circumstances to respect for inter alia their persons, honour and family rights, and must at all times be treated humanely and be protected against all acts of violence. Women shall be protected against all forms of sexual violence.
iii. Civilians may only be detained in anticipation of trial on criminal charges or for imperative security reasons, and must receive a fair trial.
iv. Civilians who commit hostile acts may be punished according to law but do not lose their civilian status, unless they satisfy certain formal criteria establishing them as members of military groups which are party to the conflict, in which case they benefit from POW status. If they do not satisfy these criteria, they may, in the interests of the security of the detaining power, be denied ‘communication rights’, but must nevertheless be treated with humanity and guaranteed a fair trial.
v. Private property may not be destroyed unless this is necessary to military operations and may only be confiscated in accordance with local laws.
vi. So long as they distinguish themselves from the general population by the wearing of a visible distinctive sign and carry their arms openly, those captured whilst taking part in hostilities must be presumed to be POWs until their status has been individually determined otherwise by a competent tribunal.
vii. POWs must at all times be treated humanely and be protected against acts of violence and against insults and public curiosity. They are entitled in all circumstances to respect for their persons and honour.
viii. POWs may be required to give only their name, rank, date of birth and military registration details or equivalent information. No physical or mental torture or any other form of coercion, including threats, insults or unpleasant or disadvantageous treatment, may be inflicted so as to obtain information. Information obtained as a result of coercion cannot be used as evidence.
ix. POWs must be accommodated in conditions equivalent to those of the local occupying forces. Female POWs must be kept in separate dormitories.
x. POWs shall be released without delay after the cessation of hostilities, unless detained also in connection with a judicial prosecution or conviction.
xi. POWs may only be transferred from a detaining state to the custody of another state if the former is satisfied that the latter will respect the relevant provisions of the Geneva Conventions.
xii. Article 75 of Protocol I requires that nationals of states not party to an international armed conflict are also treated humanely in all circumstances. It prohibits inter alia murder, torture (whether physical or mental), violence to health and physical or mental well-being, corporal punishment, outrages upon personal dignity, in particular humiliating and degrading treatment and any form of indecent assault, and threats to commit prohibited acts. It also guarantees protection against arbitrary detention and fair trial, and stipulates that persons accused of war crimes or crimes against humanity shall be presented for prosecution and trial in accordance with international legal standards.
xiii. Common Article 3 of the Geneva Conventions sets out minimum standards of conduct in armed conflicts not of an international character. It prohibits inter alia violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment; and punishment without previous judgment made in accordance with fair trial guarantees.
ii. International human rights law
2. The essential applicable principles can be extracted from the International Covenant on Civil and Political Rights and the European Convention on Human Rights: the former is applicable to the USA; both are applicable to all Council of Europe member states. There may be a question as to whether these instruments give rise to responsibility and accountability for violations committed in Iraq by the agents of States party. A conclusive juridical answer to this question is outside the scope of the present report, but the Rapporteur believes that all Council of Europe member States have at least a moral and political duty to uphold and promote these basic standards in all circumstances. This includes not only requiring all members of armed forces to respect human rights, but also affording an effective remedy to all whose rights are violated at the hands of such forces. In the present context, the Rapporteur would refer to the following:
i. Right to life. Both the ICCPR and ECHR prohibit arbitrary deprivation of life. The latter clarifies that the use of force resulting in death does not constitute a violation only when absolutely necessary in defence of any person from unlawful violence, in order to effect a lawful arrest or prevent escape, or to quell a riot or insurrection. Absolute necessity means that the force used, including the weapons employed, must be strictly proportionate to the achievement of the permitted aims. The utmost care is required in the planning and control of operations during which lethal force may be used. All feasible precautions must be taken to protect the lives of the civilian population. There is a rebuttable presumption that the authorities are responsible for deaths occurring during detention. The authorities’ failure properly to investigate suspicious deaths amounts to a violation of the right. The ECHR prohibits the transfer of individuals into the custody of states which might seek to execute the death penalty against them.
ii. Prohibition on torture and cruel and inhuman treatment and punishment. This permits neither qualification nor derogation in any circumstances. According to the UN Convention against Torture, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The European Court of Human Rights defines torture as “deliberate inhuman treatment causing very serious and cruel suffering.” It defines inhuman or degrading treatment as being of a minimum degree of severity and either causing intense physical or mental suffering or arousing in its victim feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. In respect of a person deprived of their liberty, any recourse to physical force which has not been made strictly necessary by that person’s conduct diminishes human dignity and violates the prohibition. There is no inconsistency between the definitions given by these two instruments. The UN Convention prohibits reliance on statements obtained as a result of torture during any proceedings, other than those concerning the torture itself. A rebuttable presumption exists that the authorities are responsible for physical or mental injury occurring during detention. The ECHR prohibits the transfer of individuals to circumstances, including the custody of other states, which might violate Article 3.
iii. Right to liberty and security. This is reinforced in both texts by analogous series of essential procedural and judicial safeguards.
iv. Right to a fair trial. Again, this right is reinforced by a series of essential safeguards.
v. No punishment without law. It must be noted, however, that this does not prejudice trial for acts or omissions which, at the time of their commission, were criminal according to general principles of law recognised by civilised nations;[10] in other words, the international criminal law offences codified by the Rome Statute (see below).
vi. Right to respect for private and family life, home and correspondence. This includes protection of the moral and physical integrity of the person, offering detainees additional protection to that provided by the prohibition on torture and on cruel, inhuman or degrading treatment or punishment.
vii. Right to an effective remedy, including for violations committed by persons acting in an official capacity.
viii. Prohibition of discrimination in protection and enjoyment of the above rights, including inter alia on grounds of sex, race, colour, language, religion, political or other opinion, national origin or association with a national minority.
iii. International criminal law
3. The Rome Statute of the International Criminal Court (ICC) codified offences under international criminal law. In practice, they are the following: genocide, crimes against humanity and war crimes. Of relevance to the present report, the Statute, by reference to grave breaches of the Geneva Conventions and other serious violations of IHL, elaborates war crimes to include inter alia:
i. Wilful killing;
ii. Torture or inhuman treatment;
iii. Wilfully causing great suffering, or serious injury to body or health;
iv. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
v. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
vi. Unlawful deportation or transfer or unlawful confinement;
vii. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
viii. Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
ix. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
x. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
xi. Committing rape and other forms of sexual violence also constituting a grave breach of the Geneva Conventions.
4. In addition to its codification of offences, the Rome Statute establishes a Court with subsidiary jurisdiction to try those cases not subject to national legal process. National criminal laws should encompass the offences contained in the Rome Statute, as it codifies established international law. The jurisdiction of a state must necessarily include all serving members of its armed forces wherever and for whatever purpose they are stationed, via the military hierarchy. Official capacity is irrelevant to liability, and commanders and other superiors are responsible for the actions of their subordinates.
5. The Rapporteur notes that the USA is seeking to renew UNSCR 1487 (2003) so as to exempt its forces in Iraq (as well as elsewhere) from the jurisdiction of the ICC. As stated in previous Assembly positions on the matter, the standing and capacity of the ICC are vital to the maintenance of international law, peace and security. All member States of the Council of Europe represented on the UN Security Council should resist any such moves to undermine the status and effectiveness of the ICC, and all member States should refrain from entering into bilateral immunity agreements.[11]
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Reference 2968 on 21 June 2004
Opinion approved by the committee on 22 June 2004
Secretaries to the committee: Ms Coin, Mr Schirmer, Ms Clamer, Mr Milner
[1] See Doc. 10224 tabled by the Political Affairs Committee.
[2] Human Rights Watch states that 12,000 Iraqis have been detained for various periods by US forces alone since the end of major hostilities in May 2003.
[3] “The Present Situation of Human Rights in Iraq,” 4/6/04
[4] “Iraq: Amnesty International reveals a pattern of torture and ill-treatment”; “Iraq: One year on the human rights situation remains dire”, 18 March 2004; “Killings of civilians in Basra and al-‘Amara”, May 2004
[5] “Sidelined: Human Rights in Postwar Iraq”; “The Road to Abu Ghraib,” June 2004
[6] See PACE Resolutions 1349 (2003) and 1253 (2001) on abolition of the death penalty in Council of Europe observer states
[7] Since these allegations became widespread, President Bush has promised to close Abu Ghraib.
[8] Amnesty International, “Iraq: One year on the human rights situation remains dire”
[9] The US ratified the ICCPR with a reservation that “‘cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution”.
[10] See Article 7(2) ECHR/ 15(2) ICCPR – the “Nuremberg principles”
[11] See PACE Resolution 1336 (2003) on threats to the International Criminal Court