This is a legal opinion by Professor Donald Rothwell, the Challis Professor of International Law at the Sydney Centre for International and Global Law, Univesirtyy Sydney, on Australia’s obligations in Iraq under the Geneva Conventions on prisoners of war. For some background on what’s at stake, see Avoiding the Geneva Conventions: how Australia does the job.

 

INTERNATIONAL LEGAL OBLIGATIONS IN POST WAR IRAQ UNDER GENEVA CONVENTION III AND GENEVA CONVENTION IV AS THEY RELATE TO THE TREATMENT OF PRISONERS AND DETAINEES

INTRODUCTION

1) On or around 20 March 2003 the Coalition military forces of Australia, the United Kingdom, and the United States commenced operation “Iraqi Freedom” in the territory of Iraq. These operations were conducted, according to Australia and the United Kingdom, under the auspices of several United Nations Security Council (UNSC) resolutions, including UNSC Resolution 1441.

2) Australia, the United Kingdom, and the United States are all parties to the four 1949 Geneva Conventions. In addition Australia is also a party to 1977 Geneva Protocol I. Consistent with the principles of international humanitarian law, the armed conflict in Iraq was conducted on the basis that the Geneva Conventions, the Geneva Protocols, and the related principles of customary international law as reflected in the Conventions and Protocol applied during the conflict.

3) On 1 May 2003, US President George W. Bush Jr. declared that active hostilities in Iraq had come to an end. This was a view apparently shared by Australia and the United Kingdom as members of the coalition.

4) Since May 2003, Iraq has remained under occupation. The relevant legal regime governing that occupation is Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (Geneva IV).

5) The United Nations Security Council has, since March 2003, adopted a number of Resolutions concerning the situation in Iraq. These Resolutions include: 1483 (2003) – adopted on 22 May 2003; 1500 (2003) – adopted on 14 August 2003; and 1511 (2003) – adopted on 16 October 2003.

6) The effect of the UNSC Resolutions has been to address the obligations of the occupying powers under Geneva IV, the post-war reconstruction of Iraq, the oil-for-food program adopted under previous UNSC Resolutions, the maintenance of the security situation in Iraq, and the post-war transition to a new Iraqi government.

AUSTRALIA AS AN OCCUPYING POWER

7) Upon entering Iraq in March 2003, Australian forces were engaged in a mission to disarm the Iraqi armed forces and to control the civilian population. These operations raised a multitude of issues under both the Geneva Conventions and Protocols and international humanitarian law in general.

8) Australia, as a party to the military operations in Iraq has assumed obligations under Geneva IV as an Occupying Power, a fact effectively acknowledged by Prime Minister Howard on 10 April 2003.

9) Immediately after entering Iraq, Australian forces began to exercise the authority of an Occupying Power including the taking of prisoners, the maintenance of security in villages, towns, and cities, the protection of civilian infrastructure, and the day-to-day management of essential services (eg. Australia’s role in air traffic control at Baghdad airport). There is no evidence, however, that Australian forces had any primary responsibility for any detention facilities or prisons.

10) Geneva III applies from the outset of any conflict or occupation (Article 6) and to “all cases of partial or total occupation” (Article 2).

11) The application of Geneva IV ceases “one year after the close of military operations” (Article 6), with the exception of those Occupying Powers which exercise the functions of government in which case several core provisions of Geneva IV continue to apply until that role has ended (Article 6).

12) UNSC Resolution 1483 acknowledged the role of the UK and US as occupying powers under unified command following a letter from those two States to the President of the Security Council.

13) UNSC Resolution 1483 requests the UK and US acting as the “Authority” to act consistent with the Charter of the UN and relevant international law, and to promote the welfare of the Iraqi people including the restoration of security and stability (UNSC Res 1483, para 4)

14) In addition, UNSC Resolution 1483 also calls upon “all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907”.

15) In October 2003, UNSC Resolution 1511 authorised the creation of a multinational force under unified command to contribute to the security and stability of Iraq (‘the Iraq stabilization force’). Australia, along with approximately 32 other UN member States have contributed to this force under US command. The mandate of the Iraq stabilization force will continue under UNSC 1511 until early 2005 when a constitutional conference is planned for Iraq.

16) As one of the three principal States which commenced military operations in Iraq in March 2003, including the occupation of Iraq, Australia as a party to Geneva IV acquired obligations as an Occupying Power.

17) While the Preamble of UNSC 1483 expressly recognizes the UK and US as Occupying Powers and designates them as the “Authority”, the Resolution does not purport to be exhaustive in its recognition of States with obligations under the Geneva Conventions and indeed expressly recognizes that other States are present in Iraq.

18) Consistent with Geneva IV, Article 6, it may be argued that Australia’s obligations as a Occupying Power ended on or around 1 May 2004 that being one year after the declared close of military operations.

19) However, the better view would be that:

a) In view of the ongoing military operations throughout Iraq since May 2003, including the very extensive military operations during April 2004, there has yet to be “a general close of military operations” as envisaged by Article 6;

b) Even if there has been a “general close of military operations”, Australia the UK and the US continue to occupy Iraq and have a significant role in the Coalition Provisional Authority (CPA).

20) Under Geneva IV, Article 6, Occupying Powers remain bound by several provisions relating to the protection of civilians “for the duration of the occupation” to the extent that they exercise the “functions of government”. In particular, Occupying Powers are prohibited from causing the physical suffering of protected persons in their hands.

PRISONERS OF WAR AND THE APPLICATION OF GENEVA CONVENTION III

21) Unlike the 2001 Afghanistan conflict, there was little debate over the application of Geneva III during the 2003 Iraq War. It was conceded by all parties to the conflict that prisoners taken would be entitled to the protections of Geneva III.

22) Under the provisions of Geneva III, there are extensive provisions governing the internment and treatment of POWs. In particular, POWs are to be humanely treated and protected against acts of violence or intimidation (Article 13), and in all circumstances are entitled to “respect for their persons and their honour” (Article 14).

CIVILIAN DETAINEES AND THE APPLICATION OF GENEVA CONVENTION IV

23) Since the commencement of the 2003 Iraq War, civilians have also been detained by coalition forces. Civilians are not entitled to the protections of Geneva III as prima facie they are non-combatants nor do they meet the definition of a POW as found in Geneva III, Article 4.

24) Civilians detained by Occupying Powers in Iraq are however protected under the provisions of Geneva IV which contains extensive provisions regarding the treatment of detainees and prisoners.

25) Occupying Powers are entitled to enforce the penal laws of occupied territories, and also adopt additional provisions which are considered essential to enable the Occupying Power to fulfil its obligations including the maintenance of orderly government of the occupied territory (Geneva IV, Article 64).

26) Civilians accused and detained for investigation arising from criminal acts within the Occupied territory are capable of being placed on trial before the courts of the occupied territory, or properly constituted non-political military courts (Geneva IV, Articles 64 and 66). No sentence can be pronounced against a civilian except after a regular trial (Geneva IV, Article 71).

27) Civilians convicted of offences in Iraq are to be detained in Iraq. Geneva IV accords them certain rights including conditions of food, hygiene, and medical attention (Article 76).

28) Geneva IV makes it clear that the parties to the Convention are prohibited from causing the physical suffering of protected persons who are in their hands (Article 32). This prohibition applies not only to murder, torture and other maltreatment “but also to any other measures of brutality whether applied by civilian or military agents.” No physical or moral coercion, including murder or torture, may be exercised against protected persons in order to obtain information from them (Article 31).

29) Geneva Convention IV also makes provision in Article 5 for civilians (protected persons) who are suspected of engaging in activities hostile to the security of the State. Those persons are not entitled to claim the rights and privileges under the Convention. However, it is made clear that such persons are to be treated with “humanity”, which would clearly suggest that are protected from acts of torture and murder. While the obligation upon Australia is less clear in this instance of where it has detained persons who are engaging in such hostile activities (insurgents, terrorists etc), as a party to Geneva IV Australia has an obligation to ensure the Convention provisions are met.

TRANSFER OF PRISONERS OF WAR AND CIVILIAN DETAINEES

30) Geneva Convention III provides for the transfer of prisoners of war (POW) from a Detaining Power to an Accepting Power under Article 12. That Article makes clear that once prisoners are transferred the Accepting Power is to treat those prisoners in accordance with the provisions of the Convention and responsibility falls upon Accepting Power to meet those Convention obligations.

31) A Detaining Power which transfers POWs is not absolved of responsibility for the prisoners. The Detaining Power should:

a) At the time of transfer of POWs seek an assurance that the prisoners will be treated in accordance with the provisions of the Convention;

b) Upon becoming aware that the Accepting Power is not meeting its Convention obligations “take effective measures to correct the situation” or it may request the return of the prisoners.

32) Geneva Convention IV deals with civilians in occupied territories. The Convention refers to civilians as ‘Protected Persons’ (as opposed to combatants and non-combatants actively engaged in an armed conflict). Article 45 is in similar terms to Article 12 of Geneva Convention III. Protected Persons may be transferred by a Detaining Power to another Power who is a party to the Convention. Upon making the transfer the Detaining Power must be satisfied that the other Power will apply the terms of the Convention to those persons.

33) Australia, as a Detaining Power is not absolved of responsibility for any civilian detainees which it has transferred to either the US or UK. Under the terms of Geneva IV, upon becoming aware that the other Power is not meeting its Convention obligations it is to “take effective measures to correct the situation” or it may request the return of the prisoners.

34) The 23 March 2003 Agreement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees entered into between Australia, the UK and US is to be read consistent with Geneva Convention III and Geneva Convention IV (see clause 1). That Agreement provides for the procedures to be put in place for the transfer of prisoners and detainees between the parties, but does not derogate from the provisions of the Conventions, nor could it derogate from the provisions of the Convention from a perspective of international treaty law.

35) On 22 March 2003, the ADF reported that HMAS Kanimbla while patrolling offshore Iraq had taken up to 50 Iraqi POWs which were subsequently transferred to another Party.

36) Australia has ongoing obligations under Geneva III and Geneva IV for those POWs it detained and transferred to either the US or UK during the conflict period between March-May 2003, and for any civilians which it has detained since March 2003 to the present and transferred to either the US or UK.

37) Australia’s obligations towards both POWs, civilian detainees and civilian prisoners do not turn on whether Australia was, is, or remains an Occupying Power in Iraq.

WAR CRIMES AND CRIMES AGAINST HUMANITY

38) The Geneva Conventions make reference to those acts which constitute war crimes under the Conventions. These acts may be subject to internal military discipline, national prosecution by the States whose personnel commit these crimes, or prosecution by the International Criminal Court (ICC) in cases where the ICC has jurisdiction and the prosecutor commences prosecution or where a State party refers a matter to the Court.

39) Grave breaches of Geneva III includes acts of:

Wilful killing;

Torture or inhuman treatment; and

Wilfully causing great suffering or serious injury to body or health (Article 130).

40) Grave breaches of Geneva IV include acts of:

Wilful killing;

Torture or inhuman treatment; and

Wilfully causing great suffering or serious injury to body or health (Article 147).

41) On the facts as they are currently available, there would seem to be compelling evidence that war crimes have been committed in Iraq through the murder and torture of Iraqi prisoners and detainees.

42) The 1998 Rome State of the International Criminal Court (ICC Statute) confers jurisdiction upon the ICC with respect to certain crimes (Article 5).

43) War Crimes are defined in the ICC Statute as being those which have been committed “as part of a plan or policy as part of a large-scale commission of such crimes”. War crimes include grave breaches of the Geneva Conventions, and extend to:

Wilful killing;

Torture or inhuman treatment; and

Wilfully causing great suffering or serious injury to body or health.

44) Australia and the UK are parties to the ICC Statute; the US is not a party to the ICC Statute. Under both Australian and UK law, both countries have an obligation to prosecute nationals suspected of having committed war crimes as defined by the Geneva Conventions and the ICC Statute.

INTERNATIONAL HUMAN RIGHTS STANDARDS AND OBLIGATIONS

45) In addition to principles of International Humanitarian Law, it is also arguable that the following international instruments are also applicable with respect to civilians detained in Iraq: 1948 Universal Declaration on Human Rights; 1966 International Covenant on Civil and Political Rights; and 1984 Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention). These instruments contain numerous provisions for the protection of prisoners, including the prohibition of torture.

46) Australia, the UK and US are parties to all of the above instruments, though in some instances subject to reservations.

STATUS OF OCCUPYING POWER POST 30 JUNE 2004

47) On 30 June 2004 it is planned to transfer sovereignty back to the Iraqi people. The exercise of Geneva Convention occupying power status post-30 June would be inconsistent with the notion that post-war Iraq has regained its sovereignty. Occupying Power status will therefore cease after this date.

48) Foreign military forces can remain in Iraq post 30 June 2004 at the invitation of the new Iraqi government. For Australia to reply upon this basis to justify its continuing military operations in Iraq it would require a formal request from the new Iraqi government.

49) It can be argued that continued foreign military presence in Iraq by the ‘Stabilization Force’ is authorised under United Nations Security Council Resolution 1511 adopted in October 2003. Whilst at all times recognizing Iraqi sovereignty, Resolution 1511 envisaged the creation of an interim Iraqi government, the holding of democratic elections, and the gradual restoration of full powers to national and local institutions. The first part of that timetable will be complete by 30 June 2004 handover. However the current UN mandate will continue until elections are held, though the Security Council will meet to review the operation of the multinational force prior to October this year.

50) UNSC Resolution 1511 does not adequately address post 30 June relationship between the members of the international ‘Stabilization Force’ and the Iraqi interim government. A new UNSC Resolution would be desirable to resolve this ambiguity.

51) It can be anticipated that the post 30 June interim Iraqi government would most likely not support the type of military force against its citizens of the kind used by the US in Falluja in April and May 2004. A new UNSC resolution would allow for clearer constraints on the use of force by international ‘Stabilization Force’ multinational forces as they engage in security and stability operations alongside newly trained members of an Iraqi Army and in cooperation with the Iraqi government.

CONCLUSIONS

52) At a minimum Australia assumed obligations under Geneva IV as an Occupying Power until 1 May 2004. However, it is arguable that in view of the continuing military operations and Australia’s ongoing engagement with the CPA, Australia and the other Occupying Powers remain bound by the core provisions of Geneva IV. These require detained civilians to be treated humanely. Protected persons may not be subject to coercion in order to obtain information (Article 31). In addition civilians must not be subjected to torture or other measures of brutality (Article 32).

53) Although it does not appear that Australia has at any time assumed responsibility in Iraq for detention facilities or prisons for either POWs or protected persons, Australia has an obligation under Geneva III and IV with respect to POWs, civilian prisoners and civilian detainees which it transferred to either the US or UK.

54) Australia is also under an obligation to “ensure respect for the present Convention in all circumstances” (Article 1). Arguably as an Occupying Power with ongoing obligations under Geneva IV, Australia has a special responsibility to ensure that other Occupying Powers respect their obligations under Geneva IV in relation to protected persons.

55) In addition to Geneva IV, the Occupying Powers are bound by the provisions of several human rights instruments, including the Torture Convention which applies to “any territory under [their] jurisdiction” (Article 2(1)). These standards remain binding and applicable irrespective of the status of the Occupying Powers according to the provisions of Geneva IV.

56) Occupying Power status will cease on and around 30 June 2004. However international forces may remain in Iraq after that day under the authorisation of UNSC Resolution 1511, though it would be desirable for a fresh UNSC Resolution to be adopted to clarify the relationship between those forces and the interim Iraqi government, the legal status of those forces, and limitations upon their use of force.