International Legal Director
The trove of Iraq war documents recently made public by Wikileaks underscores several important truths.
One, the American people have a right to know when Americans or their allies commit violations of the laws of war. Two, the American government has been woefully nontransparent. Transparency is key to accountability, to minimizing violations and to preventing the civilian population from turning against US forces. This, in turn, protects, rather than endangers, US troops.
These documents will help round out the picture of both US and Iraqi violations in detention contexts. Human Rights First has previously reported on the lack of accountability in the face of documented detainee abuses committed by US military and contractors, too many ending in the death of detainees. Since 2008, the US has stopped reporting even the fact of deaths that occur in its custody, and has consistently refused to release the results of any investigations it conducts into these deaths. Lawyers have had to sue the government under the Freedom of Information Act (FOIA) to get even the most basic information, much of which has still not been released.
These newly released documents will shed further light on the success or failure of accountability mechanisms, including those based on command responsibility, for abuses committed by Iraqi personnel. To the extent such abuses were known to US personnel, questions arise concerning the duty to intervene, to report abuses, to refrain from transferring detainees where abuses are predictable, and to hold accountable those who wrongly fail to act when action is required. There is reference in the Wikileaks documents to a military order, "FRAGO (fragmentary order) 242," which has been characterized as a prohibition of US investigation of Iraqi abuses absent direction from command headquarters. The existence of such orders, and their compatibility with other military regulations implementing obligations to respect and ensure respect for the laws of war, must be investigated.
These documents also contain disturbing allegations that may amount to violations of the laws of war in the conduct of hostilities by US forces and contractors, including use of force against civilians and against individuals seeking to surrender. To the extent new violations are identified, questions about accountability of perpetrators and their commanders, as well as remedies for victims must be addressed.
The calculation of civilian casualties alleged in these newly-release documents exceeds the numbers the government has made known until just recently. While it is difficult to determine which, if any, figures are accurate, this discrepancy raises several questions: Is the US labeling as "combatant" persons who do not meet the criteria for targeting under the laws of war and therefore, should be labeled "civilian?" Are adequate measures in place for determining casualties?
It must also be acknowledged that for much of the time the US has been at war in Iraq, the Bush Administration operated under legal guidance for Afghanistan that wrongly denied the protections of the Geneva Conventions and other international legal standards applicable to civilians and detainees. It will be necessary to ask whether there is evidence of a nexus between this faulty legal guidance and alleged abuses by US or Iraqi military personnel or by contractors in Iraq. Such abuses might include physical violence against individuals, approval of transfer of individuals to circumstances where abuse was predictable, and failure to report, investigate, or to attempt to put a stop to known abuses.
Finally, we note that the UN Special Rapporter on Torture, Manfred Nowak, has called upon the United States to investigate allegations of a U.S. role in human rights abuses in Iraq. The United States, as a party to the Convention Against Torture, is obliged to investigate alleged violations of the Convention and hold violators accountable. While the jury is out on the exact nature, extent and truth of allegations contained in the Wikileaks documents, there is no doubt that their content is sufficient to trigger the obligation to investigate.
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