The international law of armed conflict, in particular, those parts relating to belligerentoccupation, applies in Iraq. (4) The four Geneva Conventions of 1949 (5) and the HagueRegulations (6) play animportant role. Other international law relevant to human rights and to the treatment of prisonersmay also apply. For example, the International Covenant on Civil and Political Rights prohibits"cruel, inhuman or degrading treatment." (7) The Convention Against Torture (CAT) is also relevant. (8) The purpose of the four Geneva Conventions of 1949 is to mitigate the harmful effects of waron all persons who find themselves in the hands of a belligerent party. Each of the conventionsprovides specific protections for a defined category of persons who are not, or are no longer, takingpart in hostilities, including those who are detained for any reason. Whatever status a particulardetainee may be assigned, the Geneva Conventions prohibit torture and inhumane or degradingtreatment in all circumstances, including for purposes of interrogation. Prisoners of War (POW). POW status under thethird Geneva Convention ("GPW") offers the highest level of protection, including the right to betried by court martial (or national court, if a soldier of the Detaining Power could be tried that way)if accused of a crime. In case of doubt as to whether a particular captive is entitled to POW status,the Detaining Power must treat the detainee as a POW until a competent tribunal determines thestatus of the individual. (GPW Article 5). Article 13, GPW, provides that "prisoners of war must at all times be protected, particularlyagainst acts of violence or intimidation and against insults and public curiosity." Article 14 states thatprisoners of war "are entitled in all circumstances to respect for their persons and their honor. "Article 17 states that "[n]o physical or mental torture, nor any other form of coercion, may beinflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of warwho refuse to answer may not be threatened, insulted, or exposed to any unpleasant ordisadvantageous treatment of any kind." Interrogators are permitted to ask questions, but POWs arerequired to divulge only their name and limited identifying information. Tactics such as trickery orpromises of improved living conditions are not foreclosed. (9) Civilians Detainees. Civilians who inhabitoccupied territory are "protected persons" under the fourth Geneva Convention ("GC"), (10) and are entitled underarticle 27 "in all circumstances, to respect for their persons, their honor, their family rights, theirreligious convictions and practices, and their manners and customs." While an occupying power ispermitted to "take such measures of control and security in regard to protected persons as may benecessary as a result of the war," Article 27 provides further that "[t]hey shall at all times behumanely treated, and shall be protected especially against all acts of violence or threats thereof andagainst insults and public curiosity." Article 32 forbids any "measure of such a character as to causethe physical suffering or extermination of protected persons in their hands. . . [including] not only. . . murder, torture, corporal punishment, mutilation and medical or scientific experiments notnecessitated by the medical treatment of a protected person but also to any other measures ofbrutality whether applied by civilian or military agents." Civilians may be detained or interned by an occupying power only if "security requirementsmake such a course absolutely necessary." (GC art. 42). Internment or assigned residence is themost severe measure allowed in the cases of protected civilians who pose a definite security threat(GC art. 41(1)), and these measures are to be reviewed by a court or administrative board at leasttwice annually. (GC art. 43). Article 31 provides that "[n]o physical or moral coercion shall beexercised against protected persons, in particular to obtain information from them or from thirdparties." Protected civilians may be imprisoned as a punitive measure only after a regular trial, subjectto the protections in articles 64 through 77. Additionally, article 33 provides that "[c]ivilians maynot be punished for an offence he or she has not personally committed," and prohibits all forms ofcollective penalties and intimidation. There is also a prohibition against removing protected persons from occupied territory. GCart. 49 states: Individual or mass forcible transfers, as well as deportations of protected persons fromoccupied territory to the territory of the Occupying Power or to that of any other country,occupied or not, are prohibited, regardless of their motive. There is an exception that allows the temporary evacuation of an area when absolutely necessary forthe security of the population or for imperative reasons of military necessity. However, evacueesare not to be transported outside the occupied territory unless such a measure is unavoidable. UnderGC art. 147, the "unlawful deportation or transfer or unlawful confinement of a protected person"is a "grave breach" of the convention. It may also be permissible to relocate persons outside of theoccupied territory when it is to their benefit. GC art. 132 allows parties to the Geneva Conventionsto "conclude agreements for the . . . accommodation in a neutral country . . . certain classes ofinternees, in particular children, pregnant women and mothers with infants and young children,wounded and sick, and internees who have been detained for a long time." A report that the U.S. Central Intelligence Agency transferred certain detainees outside ofIraq for interrogation purposes has brought some accusations that the United States is in breach ofinternational law. (11) The Administration reportedly relies for legal support on a draft opinion from the JusticeDepartment's Office of Legal Counsel (OLC) construing the prohibition as applying to the expulsionfrom Iraq of persons who have a lawful right to be there, but not to the deportation of illegal aliensin accordance with local law or the temporary removal of persons who have not been charged witha crime to undergo interrogation at some location outside Iraq. (12) Regarding the crux of GCart. 49 as a prohibition on the "forceful uprooting of residents from their homes," (13) the OLC memorandumconcludes that the temporary transfer abroad of protected persons is not among the historical wartimepractices GC art. 49 was intended to alleviate. Thus, it concludes that the relocation of protectedpersons for a "brief but not indefinite" period is permissible so long as the transferee has not beencharged with any offense, but that the treaty's other protections would continue to apply. Other Detainees. Some argue that "unlawfulcombatants" are neither entitled to POW status nor civilian rights under the GenevaConventions. (14) TheDepartment of Defense has not determined, however, that any of the detainees in Iraq are "unlawfulcombatants." (15) Othersassert that persons who commit hostile acts but are not entitled to POW status have the status ofcivilians. (16) TheDepartment of Defense maintains that the Geneva Conventions have applied in Iraq since the onsetof combat operations, (17) unlike in Afghanistan, apparently indicating that insurgents in Iraq are treated as protected civiliansunder the GC rather than as "unlawful combatants." (18) However, the Administration had earlier determined that theTaliban were covered by the Geneva Conventions, but were nonetheless not entitled to status asPOWs or protected persons because they failed to meet the standards for POW treatment under GPWart. 4. (19) Someobservers have argued that this apparent inconsistency is at least partially to blame for the confusionwith respect to the permissibility of harsh interrogation techniques in detention facilities in Iraq. Ithas recently been reported that the Administration considers non-Iraqi detainees to be excluded fromthe status of "protected persons." (20) GC art. 5 provides some exceptions for the treatment of protected persons deemed securityrisks (21) : Where in occupied territory an individual protectedperson is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile tothe security of the Occupying Power, such person shall, in those cases where absolute militarysecurity so requires, be regarded as having forfeited rights of communication under the presentConvention. (22) In each case, such persons shall nevertheless be treatedwith humanity, and in case of trial, shall not be deprived of the rights of fair and regular trialprescribed by the present Convention. They shall also be granted the full rights and privileges of aprotected person under the present Convention at the earliest date consistent with the security of theState or Occupying Power, as the case may be. GC art. 143, providing that the delegates of the Protecting Power or ICRC are to haveunlimited access to prisoner of war camps and internment facilities for interviewing protectedpersons, also contains an exception for security. The Detaining Power may prevent such visits forreasons of "imperative military necessity," but only as an "exceptional and temporary measure." Itis apparently under this exception that ICRC representatives were denied access to some detaineesat Abu Ghraib. (23) However, most undocumented "ghost detainees" appear to have been kept from the view of ICRCrepresentatives by the CIA, operating outside military procedures for documenting detainees. (24) (25) (26) (27) Such persons may also be protected by article 75 of Additional Protocol I to the GenevaConventions. (28) Article75 provides that "persons who are in the power of a Party to the conflict and who do not benefit frommore favorable treatment under the Conventions . . .