Umm Sayyaf, the wife of a suspected high-ranking ISIL member, is back in the news at The Daily Beast.

US special operations forces captured Sayyaf in Syria in May and brought her to Iraq after conducting a raid that killed her husband, Abu Sayyaf. (Just Security and Lawfare have published a few posts about Sayyaf here, here, and here.)

Four unnamed US government sources have now told The Daily Beast that Sayyaf is providing invaluable intelligence about ISIL’s structure, including the role that women play. “She was a principal adviser. … She has a lot of details,” a senior defense official told The Daily Beast.

Be that as it may, it’s hard not to compare these government statements with the hyped-up intelligence reports on detainees held in Iraq, Afghanistan, Guantánamo Bay, and elsewhere. It’s also hard not to be reminded that in the past the United States has, in contrast to international legal standards, detained people based solely on their intelligence value.

This makes it all the more important for the lawfulness of Sayyaf’s detention to be assessed promptly and reviewed regularly by a court or other tribunal possessing the same attributes of independence and impartiality. (This is to say nothing of the other due process rights she should be afforded that I covered in my previous post.)

This latest news report also ends with this ominous conclusion: If Sayyaf is not tried under US domestic law, “she may be handed to Iraqi custody. What happens to Umm Sayyaf then is unknown.”

But it’s not “unknown.”

The State Department’s 2014 Human Rights Report notes that, in Iraq, “[t]he Human Rights Ministry confirmed that allegations of torture and systematic abuses were pervasive within prisons and detention centers.”

The report also says that Human Right Watch “documented reports of threats and cases of sexual assault of female detainees, particularly during arrest and interrogation. For example, interviewed detainees described being kicked, slapped, raped, or threatened with sexual assault by security forces. One woman reported receiving threats that officials would rape her teenage daughter to elicit her confession.”

The seriousness of these and other allegations of abuse raise serious non-refoulement concerns for Sayyaf (as well as for other future detainees). Non-refoulement is the obligation that States must not hand a detained individual over to another State where there are substantial grounds for believing that there is a real risk of torture or other serious human rights abuses.

In situations of non-international armed conflict, the non-refoulement obligation is found in the Convention Against Torture, is covered by the International Covenant on Civil and Political Rights, and can, and should, be read into Common Article 1 of the Geneva Conventions and the International Covenant on Civil and Political Rights.

The same goes for international armed conflict, which has additional protections that are, in some respects, even stronger. Article 45 of the Fourth Geneva Convention and Article 12 of the Third Geneva Convention restrict belligerents from transferring a detainee to another Power when that Power will not apply the Geneva Conventions — which includes protections against torture and unfair trials. If the transfer takes place and abuse ensues, the receiving State must correct the situation or the sending State has an obligation to request the return of the detainee and the receiving State must comply.

The United States does not have a great track record of fulfilling its non-refoulement obligations in Iraq and Afghanistan, which has led to stinging criticism and caused, in some cases, the United States to take corrective measures. Part of the problem is the fact that the United States has not, as Nathalie Weizmann and Rebecca Ingber pointed out in their post, regarded itself as being legally bound to the rules or interpretations I’ve mentioned above.

If the United States wants to take a new approach — one that is in line with international law and guards it from inevitable criticism — it should regard its non-refoulement obligations as legally binding.

There are still many important questions about the lawfulness of Sayyaf’s detention (questions that this post leaves aside), but at a minimum the United States should, if it has not already done so:

  • Assess on a regular basis which, if any, safe and humane detention facilities it could transfer detainees to in Iraq. This should include an assessment of whether independent groups, lawyers, health professionals, and others have access to such facilities.
  • Assess the quality of laws, due process procedures, and trials to which transferred detainees may be subject to ensure they are not subjected to a flagrantly unfair trial.
  • Formally notify the ICRC when the United States is holding detainees and grant the ICRC full and unfettered access to Sayyaf and others.
  • Establish a mechanism that allows for an adequate and individualized examination of the detainee’s circumstances through a fair and transparent process before a competent, independent, and impartial decision-maker. This review mechanism must have the power to suspend a transfer to be blocked if there are credible non-refoulement concerns.
  • Conduct investigations into allegations that the principle of non-refoulement was violated, and provide adequate reparations when a violation is found.
  • There is also the option of “diplomatic assurances” — whereby the receiving State (i.e., Iraq) agrees with the sending State (i.e., U.S.) that it will not violate the rights of the transferred detainee. These assurances often include arrangements for the detainees to be monitored by the sending State or independent groups, but these assurances have come under heavy scrutiny for being a legally insufficient and/or ineffective safeguard to uphold the non-refoulement obligation.

For more on the issue of non-refoulement, I recommend this piece by (formerly) ICRC’s Emanuela-Chiara Gillard.