Wikileaks and Efforts to Limit the Interstate Transfer of Detainees

File this under the heading of legal issues looming on the horizon... A major theme of the Wikileaks-Iraq coverage involves the claim that the U.S. and its allies acted illegally by transferring detainees to Iraqi custody given the prospect that Iraqi authorities might abuse them.  One news account, for examples, quotes Human Rights Watch as stating that

"the US government should also investigate whether its forces breached international law by transferring thousands of Iraqi detainees from US to Iraqi custody despite the clear risk of torture,"

and Amnesty International as having

concerns that US authorities "committed a serious breach of international law when they summarily handed over thousands of detainees to Iraqi security forces who, they knew, were continuing to torture and abuse detainees on a truly shocking scale."

Of course, this general issue--the non-refoulement concern-- is familiar from the context of the long-running extraordinary rendition debate.  But it is worth pausing to consider its implications when it arises on a systemic scale in connection with overseas combat deployments in which the United States for legal or policy (think COIN) reasons seeks to reduce its footprint in the detention realm by relying more heavily--or even exclusively--on host-nation prosecution or other forms of host-nation detention. Canada and the UK have been tied up in litigation and political knots over this issue for some time, though without undue dispruption to the overall war efforts in Afghanistan and Iraq given the continuing ability of the U.S. to hold prisoners and the relative freedom the U.S. has had to transfer its detainees to local authorities.  To the extent that this situation changes for the United States--i.e., to the extent that it grows difficult for the U.S. either to detain individuals itself or to turn them over to host-nation custody--the pressure will mount to focus on other options. One other option, of course, is to pressure the host nation to not abuse its prisoners, and then proceed with transfers once that concern has been addressed adequately.  That would be ideal.  But some would say that we already do just that, and in any event that what the U.S. government views as an adequate response to the non-refoulement concern will not likely satisfy many critics.  And to the extent that such criticisms begin to produce real limits on the ability of the U.S. to transfer detainees to a host-nation government, the pressure to avoid taking detainees into custody in the first place would grow.  This in turn might find expression in the form of increased reliance on the use of lethal force where lethal force is a lawful option (itself the subject of considerable debate), or it could simply accelerate a withdrawal. Interested in thinking through these dynamics in further detail?  As it happens, Ben does just that in a forthcoming book that should be mandatory reading for those following the detention policy debate.  Much more on that to follow...