What would happen re detainees after US election: Jordan J. Paust

US Duties to Detainees During a Withdrawal from Iraq

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that so long as the United States is an occupying power or exercises effective control in any part of Iraq it must ensure that it is meeting its obligations to detainees under international law and the laws of war.

---

Both presumptive presidential nominees are likely to attempt to downsize US military forces operating within Iraq if elected to the presidency. Obama would do so in a responsible manner, perhaps over a period of months, whereas McCain would leave US troops in-country for decades and downsize over a period of years. In either case, it is worth contemplating what might happen to persons who are detained by US military or other personnel in Iraq, or who are otherwise within effective US control. Is there a need for agreement concerning the detainees?

As a former and apparently present occupying power over any portion of Iraqi territory under its effective control, the US has responsibilities under the laws of war with respect to detained persons, and will have until any form of effective occupation ends. Such responsibilities continue to involve the absolute prohibitions of torture and cruel, inhuman, degrading, or humiliating treatment at US hands or in complicity with others. These prohibitions are also part of customary international law reflected in common Article 3 of the 1949 Geneva Conventions and are applicable to detained persons of any status. Also of interest is the absolute obligation under Articles 49 and 147 of the 1949 Geneva Civilian Convention to not transfer non-prisoners of war out of occupied territory or out of the theater of war within a country of detention such as Iraq. Under Article 4 of the Convention, it is clear that the protections under Articles 49 and 147 even reach nationals of a neutral state or a co-belligerent state while they are outside the actual territory of the detaining state (e.g., while outside U.S. territory). Persons who are security threats can continue to be detained under Articles 5 and 78 of the Geneva Civilian Convention if such is necessary for reasons of security and if there is periodic review of their status and release when detention is no longer necessary, but non-prisoners of war cannot be transferred out of Iraq. It is possible, therefore, that the US will attempt to continue to detain certain individuals within Iraq even after a significant withdrawal of US military forces, but US competence to do so would hinge on continuation of the applicability of Geneva law to an area, however small, where the US continues to exercise effective control.

Treaty-based and customary human rights law along with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), contrary to the Bush Administration, clearly apply wherever the US exercises effective control or jurisdiction over detainees, and such laws require that the US not transfer persons under its control to any country, including Iraq, if there is a “real risk” that the persons transferred will suffer human rights violations. Article 3 of the CAT also mandates that no party to the treaty “shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” More generally, complicit behavior by a state or its officials and its other nationals can create “state responsibility” under international law (which can lead to political, diplomatic, economic, and juridic sanctions against the state) and individual criminal and civil liability.

In view of the probable continuation of U.S. control of certain persons within Iraq (persons who, under Geneva law, cannot lawfully be transferred out of Iraq) and in view of continued US responsibilities under treaty-based and customary international law, it would seem to be in the interest of the US to offer the following clause with respect to any future agreement with the government of Iraq concerning US downsizing of troops and future relations and responsibilities between the US and Iraqi governments and their military forces:

“All persons in the hands of the US or in any other manner under effective US control who are protected in any manner under the 1949 Geneva Conventions shall remain under the complete jurisdiction and control of the US and shall not be transferred to any state where there is a real risk of deprivation of their human rights.”

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer, and member of the Faculty of the Judge Advocate General’s School. Discussion of some of the abovementioned and other duties of the U.S. appears in an earlier article: “The United States as Occupying Power Over Portions of Iraq and Special Responsibilities Under the Laws of War, 27 Suffolk Transnat’l L. Rev. 1 (2003).