July 6, 2004 – Hours after US officials declared Iraq a "sovereign" state, the case of a single Iraqi prisoner stood as a reminder that the question of which government now has jurisdiction over Iraqi detainees -- the United States or the Interim Government of Iraq -- is far from settled.
In addition to potentially affecting the fates of thousands of Iraqis currently in US custody, the case raises significant questions about how the Geneva Conventions should be applied in Iraq while the country is officially "sovereign," yet still subject to UN resolutions, dependent on international funding and effectively occupied by a massive foreign military force.
On June 28, a 23 year-old Iraqi man was brought before the US-established Central Criminal Court of Iraq. According to the Financial Times, American prosecutors charged that Iyad Akmush Kanum was riding in a car from which a gunman fired an assault rifle at Iraqi and coalition troops. Kanum claimed it was a case of mistaken identity. The presiding Iraqi judge ruled in his favor, acquitting Kanum, who has been held in US custody at the Abu Ghraib prison.
But US prosecutors refused to uphold the judgeâ€™s ruling and ordered Kanum to be returned to Abu Ghraib. They argued that under a provision of the Geneva Conventions they were not bound by the Iraqi judgeâ€™s decision, the Financial Times reports.
The Central Criminal Court was created by the American-led occupation and adheres to a blend of Iraqi law and legal decrees signed by former US civilian administrator Paul Bremer. US lawyers prepare cases for Iraqi prosecutors to present to Iraqi judges, who were also chosen by the now-departed Coalition Provisional Authority. It is the same court before which Saddam Hussein and other former regime officials appeared last week.
US prosecutors say the official handover of sovereignty to Iraqâ€™s interim government does not change the courtâ€™s structure or its mission.
Many Iraqis, by contrast, see the Central Criminal Court as a creature of the occupation and say it must be abolished now that Iraq is formally a sovereign state again, FT reports.
"The Geneva Conventions no longer apply as of 10:26 this morning," one Iraqi lawyer told FT on June 28. "If the Iraqi courts have acquitted an individual he must be released. Anything else is a violation of sovereignty," he said, referring to Kanumâ€™s case.
Some analysts have already begun highlighting the differences between official rhetoric and the reality on the ground in Iraq. "Security Council resolution 1546 contains eight references to the words â€˜sovereignâ€™ and â€˜sovereignty,â€™" observed Oxford University professor Sir Adam Roberts, a renowned expert in international law.
In a June 28 policy briefing for the International Humanitarian Law Research Initiative, Roberts said the numerous references to "sovereignty" probably constituted "a record for a UN Security Council resolution." He suggested that "the more sovereignty is in question, the more it needs to be asserted."
UN Security Council Resolution 1546 also restricts the interim government "from taking any actions affecting Iraqâ€™s destiny beyond the limited interim period." That is, the un-elected interim government cannot negotiate treaties with the US in order to formally end hostilities. Meanwhile, Iraq remains unstable in both its infrastructure and security needs.
Thus, the US-installed government pleaded that Iraqi society continues to depend on an overwhelming foreign military presence. The UN agreed, "recognizing" that "international support for restoration of stability and security is essential to the well-being of the people of Iraq."
This rationale is being asserted by the United States apparently to bolster the argument that some aspects of the Geneva Conventions remain relevant to the "post-handover" scenario. But scant reference to the continued applicability of the Conventions can be found coming from the US State Department or Pentagon, except where rules express the rights of the occupier, rather than its responsibilities.
Despite the repeated labeling of Iraq as "fully sovereign," the country does not meet the conditions of a sovereign state as required under the Fourth Geneva Convention, which outlines how an occupying force must treat civilians in occupied territories. In particular, Article 6 states, "In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations." At present, the US is actually escalating military operations inside Iraqâ€™s borders.
Iraqâ€™s interim government and the UN alike have allowed the US-led foreign military presence, now called the "Multinational Force" in official terminology, to retain the broad military powers they held during the prior fourteen months of formally recognized occupation.
The facts on the ground lead some international human rights organizations to argue that, while technical "sovereignty" may have been handed over, the US is still obligated to provide for the security and well-being of Iraqis, as outlined under the Fourth Geneva Convention.
"If [foreign forces] continue to exercise effective control over Iraq, including acting as the de facto Occupying Powers, they will be fully bound by their obligations under international humanitarian law governing situations of international armed conflict and occupation, including the Fourth Geneva Convention," Amnesty International argues in a new report addressing human rights issues facing the interim government.
Of particular concern to Amnesty is the lack of clarity on the continued incarceration of detainees, such as Iyad Kanum, who remain in the custody of US-led forces.
Having concluded that the torture and abuse of Iraqi detainees by US guards and interrogators at Abu Ghraib constituted a "a war crime," Amnesty International wrote to UN Security Council members on June 2. The letter urged the Council to address the issue of prisoner protections in its resolution permitting the transfer of power to the interim government, rather than waiting for the formation of the National Assembly or constitutionally-elected officials. Despite the request, Amnesty notes that UN Security Council Resolution 1546 is silent on the issue of human rights for currently interned Iraqis.
"This is particularly worrying since the US has already announced that it intends to continue to hold, without charge, between 4,000 and 5,000 detainees," states the human rights group, which calls for the immediate identification of all prisoners in custody, including clarification of their legal status.
"Prisoners of War... must be released at the end of the international conflict," Amnesty maintains. "Those who were held may only be re-arrested by the Iraqi authorities if there are grounds under Iraqi law, consistent with international standards, to detain them...."
US Secretary of State Colin Powell referred to the Geneva Conventions with a single statement in a letter appended to the UN resolution. Powell asserted that foreign forces in Iraq must "continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission," but that those forces "are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions."
The very functions Powell ascribed came under question on June 30, when The Guardian reported that American Military Police raided a Ministry of the Interior building in response to allegations that Iraqi interrogators were abusing prisoners held there following their capture in the first major anti-crime, anti-terrorism effort to be led by Iraqis.
Ministry officials admitted Iraqi police had beaten 150 detainees there. Nonetheless, the incident showed that the United States, rightly or otherwise, does not believe Iraqi "sovereignty" includes the prerogative of Iraqâ€™s new government to police its own police.
Legal analysts and participants on all sides expect disputes surrounding custody, jurisdiction and the applicability of the Geneva Conventions to continue. Uncertainty lingers around the matter of accountability for the growing US-led military force still patrolling Iraq. Of particular concern to many Iraqis are questions about who has the authority to ensure that foreign forces adhere to their legal obligations if even the United Nations doesnâ€™t appear willing to acknowledge that Geneva provisions still apply to both Iraq and its occupiers.