Sunday, April 4, 2010

Military Contractors Treatment of Prisoners in Iraq

A recent Army report charging that U.S. Military Police and other private personnel, including civilian contractor personnel, abused Iraqi prisoners held under the
authority of the Coalition Provisional Authority (CPA) has given rise to questions
regarding the applicable law. The report was the result of an Army investigation
initiated after a soldier turned over to military law enforcers photographs depicting
U.S. military personnel subjecting Iraqi detainees to treatment that has been
described as degrading, inhumane, and in some cases, tantamount to torture.

The international law of armed conflict, in particular, those parts relating to belligerent occupation, applies in Iraq. The four Geneva Conventions of 1949 related to the treatment of prisoners of war (POW) and civilian detainees, as well as the Hague Regulations define the status of detainees and state responsibility for their treatment. Other international law relevant to human rights and to the treatment of prisoners may also apply. For example, the International Covenant on Civil and Political Rights prohibits “cruel, inhuman or degrading treatment.” The U.N. Declaration on Human Rights and the U.N. Convention Against Torture (CAT) may also be relevant. Federal statutes that implement the relevant international law, such as the War Crimes Act of 1996 and the Torture Victim Protection Act, as well as other criminal statutes with extraterritorial application may also come into play.

Finally, the law of Iraq as amended by regulations issued by the Coalition Provisional Authority (CPA) may also apply in some circumstances.

This report summarizes pertinent provisions of the Geneva Conventions Relative to the Treatment of Victims of War (Geneva Conventions) and other international agreements concerning the treatment of certain types of prisoners. The report begins with a discussion of international and U.S. standards regarding the treatment of prisoners. A discussion of accountability in case of breach of these
standards follows, including potential means of asserting jurisdiction over alleged violators, either in military courts under the Uniform Code of Military Justice (UCMJ) or U.S. federal courts, by applying U.S. criminal statutes that explicitly apply extraterritorially or within the special maritime or territorial jurisdiction of the United States (as defined in 18 U.S.C. § 7) or by means of the Military Extraterritorial Jurisdiction Act (MEJA). Finally, the report discusses international requirements to provide redress for those whose treatment at the hands of U.S. officials may have fallen below the standards outlined in the first section of the report.

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