What Remedy for Abused Iraqi Detainees

• Author: Major Julie Long
• Pages: 05

2006] REMEDY FOR ABUSED IRAQI DETAINEES? 43

WHAT REMEDY FOR ABUSED IRAQI DETAINEES?

Major Julie Long*

If we do not maintain Justice, Justice will not maintain us.1

Justice cannot be for one side alone, but must be for both.2

I. Introduction

Both United States and international law prohibit murder, torture, and any degrading or inhumane treatment of any person detained by U.S. personnel.3 It appears that U.S. servicemembers and other persons

accompanying the force in Iraq may have violated these prohibitions in their treatment of some detainees in Iraq;4 indeed, several U.S. service members have been convicted of crimes relating to the abuse of Iraqi detainees.5 The appropriate remedy for breaches of these prohibitions by United States persons, whether service members or contractor personnel accompanying the force, is more problematic than simply recognizing that a breach occurred. Criminal prosecution is available under various U.S. federal statutes, including the Uniform Code of Military Justice (UCMJ).6 Although prosecution is important, it is unlikely to provide any

compensation to the abused person and, as noted below, may be insufficient to meet international law obligations.

In a purely domestic context, civil suits for damages provide a remedy that fills the holes left by criminal prosecution. Civil suits compensate the injured, re-apportion the burden of the injury, and, perhaps most significantly in this article's context, help the alleged wrongdoer repair reputation and relational damage.7 United States law provides various civil remedies to compensate those who have been injured by U.S. service members or contractors.8 In fact, several persons alleging abuse at the hands of U.S. service members or contractors while detained in Iraq have filed administrative claims against the United States.9 In addition, a number of detainees filed lawsuits in federal court against Secretary of Defense Donald Rumsfeld and members of the U.S. Army alleging torture and mistreatment.10 Several more have filed a

lawsuit against U.S. contractors.11 These cases may be just the proverbial tip of the iceberg.12

As this article explains, many factors make it unlikely that recourse to current U.S. law will result in efficient, just, or politically palatable outcomes in these cases.13 In spite of such difficulties, Secretary Rumsfeld hinted during an interview at the height of the Abu Ghraib scandal that the United States indeed may compensate Iraqi detainees who were abused by U.S. personnel.14 Moreover, the United States has obligations arising from treaty provisions to ensure an adequate remedy is available to those whose protections under such treaties have been violated.15 The question then becomes how the United States can accomplish this obligation if current law is legally, practically, or politically inadequate.

The international law concept of espousal, a mechanism through which one government adopts, or "espouses," and then settles the claims

of its nationals against another government,16 may provide a feasible solution. This treaty-based solution offers the prime advantage of holistically dealing with such claims in the process of restoring peace and creating a new relationship between Iraq and the United States in the aftermath of Saddam Hussein's regime.17 In addition, such a solution precludes costly and piecemeal litigation of such claims in U.S. courts, while providing compensation to legitimate claimants in accordance with local norms and laws.

This article first examines and analyzes the duties the United States and any of its agents owed to detained Iraqis under the provisions of the law of armed conflict, also called international humanitarian law. Then, looking at the development of customary and treaty-based international law, the article explores the current state of the law regarding the obligation to provide an adequate remedy to victims of violations of international humanitarian law, including whether a right to compensation exists in current international law. Both customary and treaty-based international law include a right to reparations when a state or its agents violate the protections of humanitarian law. Significantly, however, this right of reparation is distinct from an individual's right to compensation.

Because U.S. law provides avenues through which individual Iraqis may bring claims against their alleged abusers, the article then explores those avenues and demonstrates that those alternatives are legally, practically, or politically inadequate to offer a remedy to Iraqi detainees. The article then describes the development, use, advantages, and limitations of espousal, and suggests the parameters of a treaty-based solution for claims of detainee abuse in Iraq.

II. Obligations and Breaches: The Geneva Conventions

Of course, as in any personal injury case, whether the United States or any other party must compensate a detainee alleging wrongful injury turns first on the traditional tenets of tort law: duty, breach, proximate

cause, and damages.18 Tort law in the United States is almost exclusively the province of state law,19 and the majority rule provides that the law of the place where the injury occurred provides the substantive law of the case.20 In the case of Iraqi detainees, however, the allegedly wrongful conduct and injuries arose in a foreign country during a time of armed conflict, and the alleged wrongdoers were U.S. federal employees, including service members and contractors.21

Domestic state law-even Iraqi law-does not alone provide the substantive law by which to judge such acts.22 The definitions of who owed what duties to whom, what constitutes a breach of those duties, and what remedies may be available may also reside, if at all, in federal and

international law.23 In this case, the applicable law includes obligations arising under international humanitarian law treaties to which the United States is a party, and obligations arising under principles of customary international law that are binding on the United States.

International humanitarian law establishes clear obligations with regard to the treatment of Iraqi detainees held by the United States. The 1949 Geneva Conventions are the most prominent example of treaties that bind the United States to a particular course of conduct with respect to Iraqi detainees.24 Like all international humanitarian law, the Geneva Conventions are designed to limit the effects of war by protecting those not-or no longer-participating in hostilities.25 The Conventions

consist of four separate instruments that define the manner in which the contracting parties must treat those protected under each specific convention.26 Most significant to an analysis of U.S. obligations toward Iraqi detainees are the Convention Relative to the Treatment of Prisoners of War (GCIII), the Convention Relative to the Protection of Civilian Persons in Time of War (GCIV), and the 1977 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). As is explored below, GCIII defines who qualifies as a prisoner of war (POW) and outlines the protections that High Contracting Parties to the Conventions must provide to those who qualify.27 Geneva Convention IV establishes categories of civilians and defines protections the High Contracting Parties must provide to persons in these categories. Protocol I supplements all the Geneva Conventions when contracting parties are engaged in an international armed conflict. While the United States is not a party to Protocol I, as noted below, it accepts many of Protocol I's provisions to be binding customary international law.28

Before describing the specific manner in which the Geneva Conventions obligate the United States with respect to the Iraqi detainees, it is significant to note that by their terms, the Conventions have broad application. Common Article 129 of the Conventions states "The High Contracting Parties undertake to respect and to ensure respect

for the present Convention in all circumstances."30 In addition, Common Article 2 expressly states,

Although one of the Powers in a conflict may not be a party to the present Convention, the Powers who are parties thereto remain bound by it in their mutual relations. They shall furthermore be bound by it in relation to the said Power, if the latter accepts and applies the provisions thereof.31

Unlike previous attempts to regulate the conduct of war,32 these provisions mean that a contracting party must follow the requirements of the Conventions regardless of whether its rival is a party to the Convention.33 Moreover, although the language of Common Article 2 might seem to limit a contracting party's obligations to those "Powers" who in fact observe the protections of the Conventions, Pictet's Commentaries indicate that a contracting party must comply with its obligations regardless of whether its foe complies. Pictet states that the contracting parties agreed that the Conventions are:

not merely an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations "vis-à-vis" itself and at the same time "vis-à-vis" the others. This motive

of the Convention is so essential for the maintenance of civilization that the need is felt for its assertion, as much out of respect for it on the part of the signatory State itself as in the expectation of such respect from all parties.34

Here, both Iraq and the United States are contracting parties to the Geneva Conventions and are therefore bound to the Conventions' terms.35 Although there are allegations that Iraq did not always observe its obligations,36 the United States...