[JURIST] Human Rights Watch [advocacy website] and the New York-based Center for Constitutional Rights [advocacy website] both suggested Monday that American criticism of Iraq for breaching the obligations of the Geneva Conventions on prisoners of war may be problematic and even hypocritical in light of US treatment of detainees in Iraq and elsewhere. Human Rights Watch said:

The Iraqi government has filmed American POWs and interrogated them before cameras. The U.S. government has taken insufficient measures to prevent journalists embedded with U.S. forces from filming Iraqi POWs held by the United States. U.S. Secretary of Defense Donald Rumsfeld has appropriately criticized the Iraqi filming of American POWs. However, he has said nothing to date about the filming of Iraqi POWs by media operating alongside U.S. forces. This is not the first time that Secretary Rumsfeld has been unresponsive to concerns that the United States may be acting in violation of the Geneva Conventions. Human Rights Watch and others have previously criticized the U.S. government for aspects of its treatment of captured persons during the war in Afghanistan, particularly the failure to properly determine the legal status of those held, and “stress and duress” techniques that might amount to torture under international law.

The US has an immediate and long-term interest in upholding international conventions that establish universal rules of war and regulate the treatment of POWs. At the time of the Guantanamo captures, CCR argued that our own soldiers live with the threat of capture and that they, like all other combatants, deserve the protection of the Geneva Conventions. It is impossible to know whether US violations of the Conventions led to Iraqi non-compliance, but US compliance would have certainly made its current complaints more credible and less hypocritical. Selective compliance with the law by the U.S. leads to selective compliance by others.

[JURIST] In a letter Monday, the New York-based monitoring group Human Rights Watch [advocacy website] urged the Chairman of the UN Human Rights Commission to call a special sitting to monitor human rights during the conflict in Iraq:

During the high-level segment opening this 59th session of the Commission, several speakers, including yourself, focused on the possible human rights consequences of the war in Iraq. The U.N. High Commissioner for Human Rights has also called on all parties to the conflict to respect fully international human rights and humanitarian law. The current war may have devastating consequences for the civilian population of Iraq: civilians may suffer as a result of indiscriminate or disproportionate attacks by US and allied forces; Iraqi military forces may commit abuses or use civilians as human shields; local armed groups opposed to the Iraqi government may commit revenge killings and other abuses; hundreds of thousands of people may be displaced from their homes and prevented from seeking refuge in neighboring countries; the destruction of infrastructure and disruption to basic services may threaten public health and safety. Human Rights Watch believes the Commission should not wait until human rights abuses occur, but convene a special sitting now to anticipate these concerns and take effective preventative action.

[JURIST] AP reports that Iraqi TV Monday showed video of two men it said were US Apache helicopter pilots captured when their helicopter was brought down earlier in central Iraq. The men did not speak and were not asked any questions. A collection of documents, including ID cards, was later shown. Read the full AP wire story in the San Jose Mercury News.

[JURIST] The United Kingdom Foreign and Commonwealth Office [official website] announced in a press release Monday that it was expelling two diplomats attached to the Iraqi Interests section of the Jordanian Embassy in London, pursuant to the terms of Article 9 of the Vienna Convention on Diplomatic Relations:

The Foreign Office has today decided that the Head of the Iraqi Interests Section in the Embassy of the Hashemite Kingdom of Jordan is persona non grata and the Administrative Attache of the Iraqi Interests Section is not acceptable as a member of the Embassy. The Ambassador of Jordan has been informed of this decision and asked to arrange for the departure of the two Iraqi diplomats within five working days.

Notes for Editors

1. This decision has been taken in accordance with Article 9 of the Vienna Convention on Diplomatic Relations.

2. Text of Article 9:

A. The receiving State may, at any time and without having to explain its decision, notifiy the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission…

B. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State, may refuse to recognise the person concerned as a member of the mission.

[JURIST] The International Committee of the Red Cross [advocacy website] issued new Iraq field reports Monday concerning POWs, the humanitarian situation in Basra, and other matters. On POWs:

The ICRC has established contacts with a view to gaining access to prisoners of war (POWs). There has been a lot of interest in the issue of POWs being shown on Iraqi television: it should be noted that Iraqi POWs had already been shown on various TV channels on 22 March. The ICRC draws attention to the relevant passage of Article 13 of the Third Geneva Convention: "...prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity." It is important to point out that: a) the dignity of POWs should be protected and b) account should be taken of the impact these images could have on their families. Other important issues concerning POWs – especially their security and access to medical care – also have to be considered. The ICRC's current priority is that POWs be protected and kept in a safe place.

Situation described as tense and difficult. The ICRC has no current figures on casualties. The total electricity blackout caused by the destruction of high-voltage cables in the hostilities continues. Following a temporary total breakdown, 40% of the population now have access to water thanks to emergency measures taken on 22 March by the ICRC and local engineers. However, this water is not of sufficiently good quality to be used in the long term.

[JURIST] Iraq's oil wells are on fire - see the latest satellite images of oil wells at Rumailah, along the Iraq-Kuwait border, provided Monday by the United Nations Environment Programme. Could Iraqi soldiers and civilians torching Iraq's oil wells be tried for war crimes? The key provisions of international law affecting this question come from three instruments. Protocol 1 to the Geneva Conventions [text], adopted in 1977, says in Article 35 that "it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the environment." Article 55 says:

1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.

[JURIST] The US Supreme Court Monday granted certiorari in Maryland v. Pringle [US SC docket], a case concerning the Fourth Amendment. More details from DC Supreme Court litigators Goldstein & Howe. Monday's complete Supreme Court Order List [PDF text] is now online. The Supreme Court notably declined to allow an ACLU motion seeking special permission to appeal a recent ruling of the "secret" Foreign Intelligence Surveillance Review Court on the limits of the US Justice Department's wiretap powers.

[JURIST] UN Secretary General Kofi Annan spoke to reporters on the Iraq situation Monday. He responded to Friday's criticism of the UN by Iraqi Ambassador Mohammed Aldouri - reported previously on JURIST - and in light of weekend events (loss of electricity and water in Basra, display of US prisoners on Iraqi TV) reminded the warring parties of their obligations under the Geneva Conventions to protect civilians and treat prisoners of war humanely. Watch recorded video from the UN.

[JURIST] The United Nations High Commission for Human Rights [official website] reported Monday that the first small group (14) of refugees from Iraq arrived in Syria over the weekend. No other refugee arrivals in other countries bordering Iraq have as yet been reported.

The principal international legal instruments governing refugees are the 1951 Geneva Convention Relating to the Status of Refugees [text] and the 1967 Protocol Relating to the Status of Refugees [text]. The legal position of war-displaced refugees fleeing to third-party states is, however, complicated by the narrow definition of the "refugee" in the leading instruments, which is limited to persons having "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" and therefore seems to contemplate individuals rather than masses (internally-displaced war refugee groups have traditionally come under the Geneva Convention of the Protection of Civilian Persons in Time of War [text]). For further analysis see Flight in Times of War [PDF], a paper by Walter Kalin, Professor of International and Constitutional Law at the University of Bern (Switzerland). For background on potential movements of war-displaced refugees within and outside of Iraq and the legal responsibilities of various parties to them, see the Human Rights Watch February 2003 briefing paper Iraqi Refugees, Asylum Seekers and Displaced Persons: Current Conditions and Concerns in the Event of War [PDF].

[JURIST] Chief Justice William Rehnquist gave the keynote speech Friday at a University of Richmond School of Law symposium on judicial independence [UR Law news release] honoring Harry L. Carrico, the retiring chief justice of the Virginia Supreme Court. A transcript of Chief Justice Rehnquist's remarks is now online from the Supreme Court.

[JURIST] Emory University School of Law [official website] Monday announced the launch of a new website on Islam and human rights.... The AALS may move its 2004 Annual Meeting out of Atlanta if the ongoing controversy over use of the Confederate battle emblem in the Georgia state flag isn't resolved. More details from the Atlanta Journal-Constitution, courtesy of CALI's Elmer Masters, based at Emory.

[JURIST] Monday on law professors' weblogs: Lawrence Solum [Legal Theory blog] of Loyola Law School Los Angeles is blogging from the ICANN meetings [agenda] in Rio de Janeiro, Brazil.... Peter Tillers [Tillers on Evidence blog] at Cardozo Law School is coming to grips [Tillers on Evidence post] with some of Richard Posner's perspectives on evidence in litigation.

[JURIST] According to a Monday wire from Russia's ITAR-TASS news agency, Russian President Vladimir Putin has asked his Foreign Minister to make a "strong request" of the Iraqi government that it strictly follow the international rules for the treatment of prisoners of war.

"We know about the conditions the soldiers of the anti-Iraqi coalition taken prisoner are kept in," Putin said at Monday's conference with government members in the Kremlin. "I express the hope that Iraq will follow all international law requirements concerning the treatment of prisoners of war."

[JURIST] The US Supreme Court hears arguments Monday in Nguyen v. United States [US SC docket] (appeals, Article III judges - read backgrounders from DC appellate litigators Goldstein & Howe and Sam Heldman) and Wiggins v. Smith [US SC docket] (death penalty, ineffective assistance of counsel - more from Goldstein & Howe and Sam Heldman).