Detention Operations in Iraq: A View from the Ground

• Author: Brian J. Bill
• Position: Captain, JAGC, US Navy
• Pages: 411-455

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Detention Operations in Iraq:

AView from the Ground

Brian J. Bill*

Introduction

Formany, detention operations in Iraq will be forever linked with the criminal

abuses that occurred in Abu Ghraib. 1The ensuing efforts to assign personal

responsibility to those involved satisfied some proportion of the public and left

others demanding more. As the story eventually faded from the front pages, public

interest in detention operations in Iraq faded as well, and many could be forgiven

the assumption that such operations had all but ended in the wake ofAbu Ghraib.

Yet detention operations did not end in Iraq. Indeed, they expanded well be-

yond the scope that many believed possible earlier. At their height in late 2007, co-

alition forces2were detaining in excess of 26,000 persons within Iraq. But like the

dog that didn't bark, the later operations failed to attract any significant notice, de-

spite their extensive nature. This article will attempt to shed some light on subse-

quent detention operations conducted by the coalition forces, focusing on those

aspects associated with the legal authorities to detain and release detainees.

Part Iwill discuss the legal background against which detention of persons is

authorized during conflicts and other operations. Part II will describe in some de-

tail the command structure of the operation and the applicable regulatory guid-

ance, and then will explain the various review processes by which detainees were

initially interned and then eventually released. Because the author's experience in

'Captain, JAGC, US Navy.

Detention Operations in Iraq: AViewfrom the Ground

detention operations was in 2007 and 2008, the processes discussed will necessarily

be limited to that time period. This need not be asignificant liability, as that period

offered both already-developed and innovative processes that deserve study, and

potential emulation in similar situations in the future, with which Part III will be

mostly concerned.

Part I—The Law

The detention operation with which this article is primarily concerned is that under

the auspices of relevant resolutions of the United Nations Security Council. The au-

thorities granted there did not arise in avacuum, however, and the international laws

applicable to earlier phases of the operations in Iraq still retained some degree of

authority. Accordingly, areview of those applicable laws will be presented.

A. Combat Operations

Following the initiation ofcombat operations3on March 20, 2003, 4Common Arti-

cle 2of the Geneva Conventions5was triggered, and therefore all the provisions of

the Conventions applied to operations that followed. In addition, the jus in hello

provisions relating to targeting of persons on the battlefield6were also applicable.

Accordingly, combat forces were permitted to use lethal force against combatants,

and required to refrain from the use offorce against non-combatants. Persons cap-

tured on the battlefield would be assessed to fall into one of several categories, and

their subsequent treatments depended on the applicable categories.

Combatants would normally be considered prisoners of war. Article 4of the

Geneva Convention Relative to the Treatment of Prisoners of War (PW Conven-

tion) sets out the criteria for prisoner ofwar status, the predominant categories be-

ing members of the enemy's armed forces and members of organized militias who

are under responsible command, wearing adistinctive sign, carrying their arms

openly, and observing the law of war.7Assuming the person fits into one of these

categories, he is immediately treated as aprisoner ofwar in accordance with the re-

mainder of the PW Convention, and he is detained for the remainder of the con-

flict.8The detaining power is under no obligation to review the status of the

prisoner of war nor to release him until after the cessation of hostilities.

If there is doubt about the detained person's status as aprisoner of war, the de-

taining power shall convene atribunal to make the determination in accordance

with Article 5of the PW Convention.9Article 5provides very little guidance as to

the nature of the tribunal; the practice of the United States is to set up an adminis-

trative panel of three officers to hear the evidence, with no involvement of counsel

for the person in question. 10 The charter of the Article 5tribunal is alimited one:

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Brian J. Bill

does the person whose case is before it (there is no requirement that the person be

physically present before the tribunal) meet one ofthe criteria ofArticle 4? The tri-

bunal need not determine that the person is alawful combatant, though it will

likely do so in making adetermination of status. The text ofArticle 5supports this

conclusion, beginning, "Should any doubt arise as to whether persons, having com-

mitted abelligerent act and having fallen into the hands of the enemy . . .." uThis

verbal formulation indicates that it is, by this point, agiven the person has commit-

ted abelligerent act, though who has made that determination is nowhere stated.

The Article 5tribunal, therefore, does not determine whether the person's deten-

tion will continue, but merely decides whether the provisions of the PW Conven-

tion will apply to that detention. Another implication is that the drafters may have

thought that doubt would only arise in the case of apotential illegal combatant, for

in the other categories—for example, the armed forces—it is not necessary that the

service member ever commit abelligerent act to receive prisoner ofwar protection.

Should the person be determined not to be aprisoner ofwar, the next step in the

legal analysis is one ofsome controversy, brought into prominence by the decision

of the United States to detain persons in Guantanamo. That decision is not the fo-

cus of this article, so the respective positions will merely be summarized. The US

position is that there is agap in coverage between the PW Convention and the

Geneva Convention Relative to the Protection of Civilian Persons in Time of War

(Civilians Convention), into which persons characterized variously as illegal com-

batants, unprivileged belligerents, or, as used in Guantanamo, enemy combatants

fall. Customary international law permits the detention of all combatants, legal or

illegal, for the pendency ofthe conflict. The characterization of acombatant as "il-

legal" renders him liable for prosecution without the benefit of combatant immu-

nity, while also depriving him of protection under the PW Convention. The

contrary position is that there are no gaps between the 1949 Conventions, and that

adetained person who does not benefit under the PW Convention must necessar-

ily benefit from the Civilians Convention.

Assuming the "no-gaps" position as amatter of convenience of discussion, the

detaining power next turns to the Civilians Convention to determine whether

detention is available. The first issue is whether the person is a"protected person"

under Article 4 of the Civilians Convention. 12 In short, Article 4declares all non-

national (of the detaining power) civilians to be protected persons, then excepts

certain subclasses from that protection. 13 Non-protected persons benefit only

from the general protections set forth in Part II of the Civilians Convention, 14 and

from the general standards of humane treatment contained in Common Arti-

cle 3. 15 Protected persons benefit from the more substantive protections contained

in Part III of the Civilians Convention. In the context of detention, the legal

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