Coalition Provisional Authority Memo re: Joint Detainee Committee

jAPPROVED FOR RELEASE DATE: 06-Sep-2013 1.
COALITION PROVISIONAL AUTHORITY ORDER NUMBER 99
JOINT DETAINEE COMMITTEE
Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA)
. and under the laws and usages of war, and consistent with relevant U.N. Security Council
resolutions, including Resolutions 1483 (2003), 151 I (2003) and 1546 (2004),
Noting that prison facilities across Iraq were largely destroyed as a result of the acts of
the former regime and are not currently capable of providing a safe and secure
environment for the pre-trial confinement of many detainees,
Noting further that, as an interim measure, the Multinational Force maintains safe and
·secure facilities for the custody of certain numbers of security internees and criminal
detainees,
Affirming the importance of properly implementing the authority of the Multinational
Force under U.N. Security Council Resolution 1546 (2004) to take all necessary
measures to contribute to the maintenance of security and stability in Iniq in accordance
with the letters annexed to that resolution,
i 'l Acting in accordance with the consultations between the Coalition Provisional Authority
and the Iraqi Interim Government,
/
I hereby promulgate the following:
Section I
Purpose
This Order provides a mechanism for facilitating the partnership between the
Multinational Force-Iraq (MNF-1) and the Iraqi Interim Government (JIG) on all
matters relating to the management of, and the formulation of policy regarding,
security internees and criminal detainees in the custody of the MNF-1. It is designed
to ensure that detention operations comport with applicable law and human rights
standards.
Section 2
· Joint Detainee Committee
1) There shall hereby be established a Joint Detainee Committee ("Cqmmittee"), which
shall be composed of representatives of the MNF, the IIG and the States exercising
custody over detainees. The Committee shall be co-chaired by the Prime Minster and
the MNF-1 Conunander or their authorized delegates.
CP A/ORD/27 June 2004/99 F tl~ -1
·cos9s0961
JAPPROVED FOR RELEASE DATE: 06-Sep-2013
(
(
2) There shall be up to twenty-one official members of the Committee, representing the
following entities in the manner indicated:
.
a) The IIG shall be represented by the Prime Minister, the Ministers of Defence,
Interior, Justice, Finance, and the Director General of the Iraqi National
Inteiligence Service. ·
b) The MNF shall be represented by the Commander MNF-I, his Chief of Staff, the
Deputy Chiefs of Staff for Operations, Intelligence and Logistics, the Staff Judge
Advocate and the senior Theatre Commanders for the Military Police and the
United States Corps of Engineers. ·
c) The United States as a detaining State shall be represented bY the Chief of
Mission.
d) The United Kingdom as a detaining State shall be represented by its Ambassador
to Iraq.
3) Other official members of the Committee may be agreed by the co-chairs.
4) From time to time, and at the discretion of the co-chairs, other persons may be
permitted to attend as observers, to present reports to the Committee, or for other
purposes determined by the co-chairs. Such persons may include representatives of ·
the Iraqi Ombudsman on Detention and Penal Matters and delegates of the
International Committee of the Red Cr.oss (ICRC).
Section 3
Functions
The Committee shall be responsible for:
1) Establishing criteria for the detention of individuals, including the basis for release
or transfer to Iraqi jurisdiction or custody.
2) Monitoring and if necessary proposing standards and safeguards for the conditions
and rights of detainees, including processes for determining initial detention decisions
and reviewing such decisions.
3) Considering issues relating to the prosecution of criminal detainees and proposing
investigative, evidentiary or other measures that will enhance successful prosecution.
CPA/ORD/27 June 2004/99. 2
pjJY.~~
'C05950961
lA'PPROVED FOR RELEASE DATE: 06-Sep-2013
(
'
' i
4) Evaluating infrastructure imperatives, deficiencies or maintenance requirements
and proposing project or budgetilry action to address these,
5) Making recommendations concerning improvements to the command, control and
liaiso.n aspects of detainee management; the effective recording of information for
individual detainees; the tracking of the location, movement or trarisfer of detainees
and the proper communication of detainee Information to their families; and any other
matter related to detention operations and policies:
6) Advise on legal issues associated with the status and management of persons held
in detention or otherwise constrained by the MNF, and propose remedial legislation as
appropriate.
Section 4
Evaluation Standards
In making its deliberations and recommendations, the Conirnittee shall have due
regard to the provisions oflraqi law as supplemented by CPA Memoranda Nos. 2 and
3, the Memorandum of Understanding between the MNF and the IIG concerning the
handling of High Value Detainees, reports of the Iraqi Ombudsman on Detention and
Penal Matters and reports of the ICRC.
Section 5
Reporting Requirements
1) The Committee shall issue reports of its deliberations and recommendations not later
than two months after its initial meeting, and thereafter on a bi-monthly basis. The
reports shall be delivered to the Prime Minister ofthe IIG, the Commander, MNF-I,
and the U.S. and UK Ambassadors to Iraq.
2) With the agreement of the report recipients identified in subsection 5( 1) above,
reports of the Committee may be made public, with the exception of:
a) Confidential reports of the ICRC.
b) Material that is related to or part of criminal proceedings before an Iraqi Court or
MNF tiibunal, until the conclusion of those proceedings.'
c) Material that is protected by confidentiality or privacy provisions of the law
governing the Iraqi Ombudsman on Detention and Penal Matters.
CP A/ORD/27 June 2004/99 3
·cos950961
!APPROVED FOR RELEASE DATE: 06-Sep-2013 I
/ ;
d) Material that is the property of or bas been generated by one of the Committee
members, and that is not available for release to the public under law or policy.
. Section 6
Entry into Force
kt~z;:::c L. Paul Bremer, Administrator ·
Coalition Provisional Authority
CP A/ORD/27 June 2004199
I
I
4
C05950961
jAPPROVED FOR RELEASE DATE: 06·Sep-2013
COALITION PROVISIONAL AUTHORITY MEMORANDUM
NUMBER 3 (REVI$ED)
CRIMINAL PROCEDURES
Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA),
and under the laws and usages of war, and consistent with relevant U.N. Security Council
resolutions, including Resolutions 1483 (2003), 1511 (2003) and 1546 (2004),
Recognizing the CPA's obligation to restore law and order, pr9vide for the safety of the
people oflraq, and ensure fundamental standards for persons detained,
Acting pursuant to the mandate for the Multinational Force set out in UN Security
Council Resolutions 1511 (2003) and 1546 (2004) to take all necessary measures to
provide security in Iraq,
Determining, that the relevant and appropriate provlSlons of the Fourth Geneva
Convention of 1949 Relative"to the Treatment of Civilians in Time of War (hereinafter
"the Fourth Geneva Convention") constitute an appropriate framework consistent with its
mandate-in continuance of measures previously adopted,
Noting the deficiencies of the Iraqi Criminal Procedure Code with regard to fundamental
standards of human rights, ·
I hereby promulgate the following:
Section 1
Purpose
I) This Memorandum implements CPA Order No.7 by establishing procedures for
· applying criminal law in· Iraq, recognizing that the effective administration of
justice must consider: ·
a) the continuing involvement of the Multinational Force (MNF) in providing
critical support to some aspects of the administration of justice;
b) the need to transition from this support;
c) the need to modify aspects of Iraqi law that violate fundamental standards of
human rights;
d) the ongoing process of security internee management in accordance with the
relevant and appropriate standards set out in the Fourth Geneva Convention
which shall be applied by the MNF as a matter of policy in accordance with its
·mandate. ·
CP AIMEM/27 June 2004/03
'C05950961
!APPROVED FOR RELEASE DATE: 06-Sep-2013 I
Section 2
Preservation of Laws
All provisions of the Iraqi Law on Criminal Proceedings of 1971, as amended
(hereinafter "the Procedure Code"), shall continue in force unless expressly modified
by this Memorandum.
Section 3
Suspension and Amendment of Provisions
The following provisions of the Procedure Code shall be suspended and or amended:
a) In paragraph 61 (c) delete the'word "may" and insert the word "must". In
paragraph 70 delete the words "As far as possible".
b) In paragraph 123 add the following; "(b) Before questimiing the accused the
examining magistrate must inform the accused that:
i) he or she has the right to remain silent and no adverse inference may be
drawn from accused's decision to exercise that right;
ii) he or she has the right to be represented by an attorney, and if he or she is
not able to afford representation, the Court will provide an attorney at no
expense to the accused;
c) The examining magistrate or investigator must determine if the accused desires
to be represented by an attorney before questioning the accused. If the accused
desires an attorney the examining magistrate or investigator shall notquestion
the accused until he or she has retained an attorney or an attorney has been
appointed by the Court."
d) The Criminal Procedure Code is hereby amended as follows:
i) Paragraph 136 is hereby suspended.
ii) In paragraph 144 (a) delete the words" at a rate of no less than 10 dinars
and no more than 50 dinars, with the cost borne by the state treasury.", and
in 144 (b) delete the words "of no more than 50 dinars".
iii) In paragraph 168 (b) d~;lete the words "via the court".
iv) In paragraph 184 (a) delete the word "must" and insert the word "may".
v) In paragraph 199 (a) delete the words "based on permission from the
Minister of Justice".
vi) In paragraph 213 ( c;) delete the words "and ifthere is no other evidence
which proves it to be a lie."
vii) In paragraph 218 delete everything in the paragraph after the word
"coercion': where occurring.for the first time.
viii) Paragraph 221 is hereby suspended.
CP A/MEM/27 June 2004/03
'C05950961
!APPROVED FOR RELEASE DATE: 06-Sep-2013
ix) Paragraphs 285-293 are hereby suspended.
x) In paragraph 298 delete the words "by one half of one dinar" wherever
occurring. ·
xi) In paragraph 299 (b) delete the words "one day for each one half of one
dinar outstanding" and insert in place the words "reduced proP.ortionally to
the amount outstanding". ·
xii) Paragraph 306 is hereby suspended.
xiii) In paragraph 320 delete the words "and with the payment, within a
specified period, of surety of not less than 20 dinars and not more than 200
dinars. · ·
xiv) In paragraph 324 delete the words "of no less than 50 dinars and not
exceeding 500 dinars".
xv) Paragraph 371 (b) is hereby suspended.
Section 4
Advice of Rights
At the time an Iraqi law .enforcement officer arrests any person, the officer shall
inform that person of his or her right to remain silent and to consult an attorney. ·
Section 5
Criminal Detentions
I) A national contingent of the MNF shalJ have the right to apprehend persons Who
are suspected of having committed criminal acts and are not considered security
internees (hereinafter "criminal detainees") who shall be handed over io Iraqi
authorities as soon as reasonably practicable. A national contingent of the MNF
may retain criminal detainees in facilities that it maintains at the request of
appropriate Iraqi authorities based on security or capacity considerations. Where
such criminal detainees are retained in the detention facilities of a national
contingent of the MNF the following standards will apply:
a) Upon the initial induction into the detention centre a criminal detainee shall be
· apprised of his rights to remain silent and to consult an attorney by the authority
serving an arrestwarrant.
b) A criminal detainee suspected of a felony offence may consult an attorney 72
hours after induction into the detention centre.
c) A criminal detainee shall be promptly informed, in writing, in a language which
they understand, of the particulars of the charges preferred against them by the
authority serving an arrest warrant.
d) A criminal detainee shall be brought before a judicial officer as rapidly as
possible and in no instance later than 90 days from the date of induction into the
detention centre.
CP A/MEM/27 June 2004/03 3
'C05950961
!APPROVED FOR RELEASE DATE: 06-Sep-2013 I
. e) Access to detainees shall be · granted to the Iraqi Prisons and Detainee
Ombudsman (hereinafter ''the Ombudsman"). Access will only be denied the
Ombudsman for reasons of imperative military necessity as an exceptional and
temporary measure. The Ombudsman shall be permitted to inspect health,
sanitation and living conditions and to interview all detainees in private and to
record information regarding a detainee.
f) Access to detainees shall be granted to official delegates of the International
Committee of the Red Cross (ICRC). Access will only be denied the delegates
for reasons of imperative military necessity as an exceptional and temporary
measure. The ICRC delegates shall be permitted to inspect health, sanitation
and living conditions and to interview all detainees in private. They shall also
be permitted to record information regarding a detainee and may pass messages
to and from the family of a detainee subject to reasonable censorship by the
facility authorities. · ·
2) Where any criminal detainee held by a national contingent of the MNF is
subsequently transferred to an Iraqi Court, a failure to comply with these
procedures shall not · constitute grounds for any legal remedy or negation of
process, but any period spent in detention awaiting trial or punishment Shall be
deducted from any period of imprisonment imposed.
Section 6
MNF Security Internee Process
1) Any person who is detained by a national contingent of the MNF for imperative
reasons of security in accordance with the mandate set out in UNSCR 1546
(hereinafter "security internee~') shall, if he is held for a period longer than 72
hours, be entitled. to have a review of the decision to intern him.
2) The review musrtake place with the least possible delay and in any case must be
held no later than 7 days after the date of induction into an internment facility.
3) Further reviews of the continued detention of any security internee shall be
conducted on a regular basis but in any case not later than six months from the
date of induction into an internment facility.
· 4) The operation, condition and standards of any internment facility established by
the MNF shall be in accordance with Section IV of the Fourth Geneva
Convention.
5) Security internees who are placed in internment after 30 June 2004, must in all
cases only" be held for so long as the imperative reasons of security in relation to
that internee exist and ·in any case must be either released from internment or
CPAIMEM/27 June 2004/03 4
'C05950961
11\PPROYED FOR RELEASE DATE:. 06-Sep-2013 (
transferred to tlui Iraqi criminal jurisdiction not later than 18 months from the date
of induction into an MNF internment facility. Any person under the age of 18
iriterned at any time shall in all cases be released not later than 12 months after
the initial date of internment.
6) Where it is considered that, for continuing imperative. reasons of security, a
security internee placed in internment after 30 June 2004 who is over the age of
18 should be retained in internment for longer than 18 months; an application
shall be made to the Joint Detention Committee (JDC) for approval to continue
internment for an additional period. In dealing with the application the members
of the JDC will present recommendations to the co-chairs who must jointly agree
that the internment may continue and shall specifY the additional period of
internment. While the application is being processed the security internee may
continue to be held in internment b.ut in any case the application must be finalized .
not later than two months from the expiration of the initial 18 month internment
period.
7) Access to internees shall be granted to the Ombudsman. Access will only be
denied the Ombudsman for reasons of· imperative military necessity as an
exceptional and temporary measure. The Ombudsman shall be .permitted to
inspect health, sanitation and living conditions and to interview all internees in
private and to record information regarding an internee.
8) Access to internees shall be granted to official delegates of the ICRC. Access will
only be denied the delegates for reasons of imperative military necessity as an
exceptional and temporary measure. The ICRC delegates shall be permitted to
inspect health, sanitation and living conditions and to interview all internees in
private. They shall also be permitted to record information regarding an internee
and may pass messages to and from the family of an internee subject to
reasonable censorship by the facility authorities. ·
9) If ~ person is subsequently determined to be a criminal detainee following a
review of his or her status, or following the commission of a crime while in
internment, the period that person has spent in internment will not count with
respect to the period set out in Section 5 (2) herein.
IO)Where any security internee held by a national contingent of the MNF is
subsequently transferred to an Iraqi Court, a failure to comply with these
procedures shall not constitute grounqs for any legal remedy or negation . of
process, but may be considered in mitigation of sentence.
CPAIMEM/27 June 2004/03 5
·c:os9so961
lAP.P.ROVED FOR RELEASE DATE: 06-Sep-2013 l
•
Seetlon 7
Legal Consultation and Representatioa
I) With the exception of the circumstances set out in Section 5 (1) (b) all criminal
detainees suspected of a felony offense shall have the right to consult with an
attorney while in detention.
2) All accused persons appearing before any Iraqi court, including the Central
Criminal Court ofiraq, shall have the right to representation by an attorney of their
choice. Where an accused person is wtable to afford the services of an attorney the
Court will provide them with a suitably qualified attorney at no expense to the·
accused person.
Section 8
Entry into Foree
This Memorandum shall enter into force on the date of signature.
L. Paul Bremer, Administrator
Multinational Provisional Authority
CPAIMEMil7 June 1004/03