As the Iraqi government struggles to reach agreements crucial
to its survival and grapples with violence and police corruption,
approximately 25,000 Iraqis are being held by coalition forces
without a public trial.
detainee buildup is a result of the fact that, according to Col.
Mark Martins, the senior U.S. military lawyer in Iraq, the rule
of law does not prevail in Iraq, despite increased troop presence
and joint efforts with the U.S. Department of Justice.
"Iraq is in a state of armed conflict, with a very uneven
picture in terms of the criminal justice institution and the rule
of law institution," Martins said.
The U.S. Military is making an effort to establish and support
those institutions, primarily by protecting judges and lawyers
and establishing a functioning police force and judicial process,
But because the rule of law is struggling for legitimacy while
foreign fighters and insurgents battle each other and U.S. soldiers,
the military is operating under the fourth Geneva Convention and
several U.N. resolutions, which allow the military to operate
under the rules of armed conflict.
This means that Iraqi citizens who are reasonably suspected of
committing crimes can be detained without a public trial, but
not without a series of judicial reviews by U.S. Military lawyers
and Iraqi judges.
Col. David Shakes, a rule of law adviser for the multinational
force in Iraq, said that only 10 percent of the approximately
25,000 coalition detainees, so far, get a public trial.
"The U.S. has a phenomenal number of Iraqis in detention.
One impact of the surge is that U.S. Military units are out in
the community rounding up people. These people are generally picked
up on tips from informants," said Robert Perito, senior program
officer at the Center for Post-conflict Peace and Stability Operations
at the U.S. Institute of Peace. Perito also helped write last
year's Iraq Study Group report.
"Military personnel are not trained to do a criminal investigation.
We are taking people off the street and warehousing them,"
Because informant tips and intelligence sources are used to detain
suspected insurgents, criminals or terrorists who would otherwise
go free, Shakes and Martins said that those cases cannot be heard
in a public trial without jeopardizing important resources. And
because the Iraqi legal system requires evidence for a trial to
take place, many of the detainees are held indefinitely in legal
Iraq's police forces
Several factors contribute to this type of detainee
buildup, including ineffective or corrupt police forces, overcrowded
Iraqi prisons and an overburdened judiciary, Perito said.
The Iraqi Security Forces Independent Assessment Commission,
chaired by Retired Marine Gen. James Jones, told Congress that
the Iraqi National Police force should be disbanded because of
corruption. The commission found that the force has been infiltrated
by Shia militias that use the force to carry out atrocities against
Martins said that Iraqi judges are investigating the charges
and that 18 battalion commanders have been released of their duties
and some have been arrested for suspected torture of Sunnis.
"I've seen a lot of brave honest law abiding police. But
there are bad actors ... and they need to be brought under trial.
When that happens you will see more legitimacy in the government,"
The commission also found that the Iraqi Ministry of the Interior,
which oversees the police forces, was a "ministry in name
"It is widely regarded as being dysfunctional and sectarian
and suffers from ineffective leadership," the report said.
The local Iraqi police forces, called the Iraqi Police Service,
are primarily working to maintain order rather than typical community
patrolling, according to Perito.
"They are controlling a high level of violence, so the kind
of communality-based policing seen in the U.S. hasn't really developed,"
Rule of Law Centers
Another obstacle to the justice system is sectarian
actors, primarily Shia Muslims who control important government
institutions, who would use the criminal justice system against
The way forward, Martins said, will be paved by a slow and methodical
development of the rule of law, which includes improving the ability
of judicial investigators to gather evidence about alleged crimes,
protecting Iraqi judges and lawyers and using successful public
convictions of sectarian fighters to discredit those actors as
criminals and not freedom fighters.
Martins described a new concept called "rule of law centers"
that are secure complexes that house thousands of detainees, judges
and police. One already exists in the Rusafa district of Baghdad,
Martins said, adding that more will be built over the next year
in several Iraqi cities.
"The idea ... is to have little ink blots of law and order
working and to build from the bottom up," Martins said.
"The bottom line is that the rule of law efforts are showing
modest progress, but the light isn't flooding into the room yet.
We haven't turned the corner," he added.