Washington, 23 June 2004 (RFE/RL) -- On 9 June, U.S. President George W. Bush made it clear that on 30 June, full sovereignty will be transferred to Iraq's interim government under President Ghazi Ajil al-Yawir.
"I am going to thank him [al-Yawir] for having the courage to stand up and lead, and tell him that America will help him. I am also going to tell him that when we say, 'transfer of full sovereignty,' we mean 'transfer of full sovereignty,'" Bush said.
To Iraqis like Prime Minister Iyad Allawi, one of the government's chief responsibilities will be assuming control of Iraqi detainees currently in U.S. custody -- including former President Saddam Hussein. Allawi addressed the issue on 14 June. "The current detainees, without exception, will all be handed to the Iraqi authority," he said. "The handover will take place within the next two weeks. Saddam and the others will be handed over to the Iraqis, to the government."
But until Iraq has adequate security forces, the physical custody of the prisoners will remain the responsibility of the U.S.-led military coalition that has been occupying Iraq since Hussein's fall more than 14 months ago.
Under international law, the very transfer of sovereignty and the end of military occupation will dramatically change the prisoners' status, according to the Red Cross and human rights groups. They argue that once occupation ends, the prisoners must be released if they are not formally charged.
The coalition argues that United Nations Resolution 1546 -- which provides for a continued coalition security presence in Iraq after the 30 June transfer -- permits it to continue holding the prisoners without charge.
But James Ross, the senior legal adviser to Human Rights Watch, told RFE/RL that the UN resolution uses no such language. Ross said that only an occupying military force has the right to jail, without charge, people suspected of threatening the country's stability and security. But Ross is emphatic that after 30 June, these forces, and the newly sovereign government, must follow the Geneva Conventions, which forbid incarceration without charge.
"[The UN resolution] says that the coalition will continue to provide security in Iraq and that the occupation will end. And if the U.S. is going to insist that the occupation ends as of 30 June, then they no longer have a legal basis for detaining people as so-called security detainees," Ross said.
Further, Ross said, all prisoners of war (POWs) must be released because the state of war will then be over. The only POWs who may be kept in custody are those formally charged with war crimes.
Ross conceded that a very bloody conflict continues in Iraq and is likely to persist well after 30 June. This conflict would still be war, he said, but it would be a civil war. As a result, he said, civil law would apply -- and that, too, would require the release of prisoners who are not charged.
Ross said he is concerned that Iraq may become another Afghanistan. The war in Afghanistan was not as long nor as bloody as the Iraq conflict, but he said the continued status of prisoners there violates international law. "What we see in Afghanistan is the situation developing in Iraq," he said. "There, [in Afghanistan], you have U.S. forces detaining people and really holding them without any kind of legal process. You have a sovereign state, and yet it has no control over people being held."
Ross said that, to be fair, the United States and its coalition partners still may have an opportunity to legally hold some prisoners without charge. "The Iraqi authorities have suggested that they may declare a state of emergency in certain places, which would provide greater leeway for holding criminal suspects without formal charges," he said.
Ross said declaring states of emergency still would not absolve the coalition of all its legal responsibilities. He said international law still requires prisoners captured under such circumstances to have their cases reviewed by judges periodically.
"I am going to thank him [al-Yawir] for having the courage to stand up and lead, and tell him that America will help him. I am also going to tell him that when we say, 'transfer of full sovereignty,' we mean 'transfer of full sovereignty,'" Bush said.
To Iraqis like Prime Minister Iyad Allawi, one of the government's chief responsibilities will be assuming control of Iraqi detainees currently in U.S. custody -- including former President Saddam Hussein. Allawi addressed the issue on 14 June. "The current detainees, without exception, will all be handed to the Iraqi authority," he said. "The handover will take place within the next two weeks. Saddam and the others will be handed over to the Iraqis, to the government."
Under international law, the very transfer of sovereignty and the end of military occupation will dramatically change the prisoners' status, according to the Red Cross and human rights groups. They argue that once occupation ends, the prisoners must be released if they are not formally charged.
But until Iraq has adequate security forces, the physical custody of the prisoners will remain the responsibility of the U.S.-led military coalition that has been occupying Iraq since Hussein's fall more than 14 months ago.
Under international law, the very transfer of sovereignty and the end of military occupation will dramatically change the prisoners' status, according to the Red Cross and human rights groups. They argue that once occupation ends, the prisoners must be released if they are not formally charged.
The coalition argues that United Nations Resolution 1546 -- which provides for a continued coalition security presence in Iraq after the 30 June transfer -- permits it to continue holding the prisoners without charge.
But James Ross, the senior legal adviser to Human Rights Watch, told RFE/RL that the UN resolution uses no such language. Ross said that only an occupying military force has the right to jail, without charge, people suspected of threatening the country's stability and security. But Ross is emphatic that after 30 June, these forces, and the newly sovereign government, must follow the Geneva Conventions, which forbid incarceration without charge.
"[The UN resolution] says that the coalition will continue to provide security in Iraq and that the occupation will end. And if the U.S. is going to insist that the occupation ends as of 30 June, then they no longer have a legal basis for detaining people as so-called security detainees," Ross said.
Further, Ross said, all prisoners of war (POWs) must be released because the state of war will then be over. The only POWs who may be kept in custody are those formally charged with war crimes.
Ross conceded that a very bloody conflict continues in Iraq and is likely to persist well after 30 June. This conflict would still be war, he said, but it would be a civil war. As a result, he said, civil law would apply -- and that, too, would require the release of prisoners who are not charged.
Ross said he is concerned that Iraq may become another Afghanistan. The war in Afghanistan was not as long nor as bloody as the Iraq conflict, but he said the continued status of prisoners there violates international law. "What we see in Afghanistan is the situation developing in Iraq," he said. "There, [in Afghanistan], you have U.S. forces detaining people and really holding them without any kind of legal process. You have a sovereign state, and yet it has no control over people being held."
Ross said that, to be fair, the United States and its coalition partners still may have an opportunity to legally hold some prisoners without charge. "The Iraqi authorities have suggested that they may declare a state of emergency in certain places, which would provide greater leeway for holding criminal suspects without formal charges," he said.
Ross said declaring states of emergency still would not absolve the coalition of all its legal responsibilities. He said international law still requires prisoners captured under such circumstances to have their cases reviewed by judges periodically.
