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CounterPunch
December
27, 2002
An Open Letter
to President Bush on the Torture of Al-Qaeda Suspects
by KENNETH ROTH
Dear President Bush:
Human Rights Watch is deeply concerned
by allegations of torture and other mistreatment of suspected
al-Qaeda detainees described in the Washington Post ("U.S.
Decries Abuse but Defends Interrogations") on December
26. The allegations, if true, would place the United States
in violation of some of the most fundamental prohibitions of
international human rights law. Any U.S. government official
who is directly involved or complicit in the torture or mistreatment
of detainees, including any official who knowingly acquiesces
in the commission of such acts, would be subject to prosecution
worldwide.
Human Rights Watch urges you to take
immediate steps to clarify that the use of torture is not U.S
policy, investigate the Washington Post's allegations, adopt
all necessary measures to end any ongoing violations of international
law, stop the rendition of detainees to countries where they
are likely to be tortured, and prosecute those implicated in
such abuse.
I. Prohibitions Against
Torture
The Washington Post reports that persons
held in the CIA interrogation centers at Bagram air base in
Afghanistan are subject to "stress and duress" techniques,
including "standing or kneeling for hours" and being
"held in awkward, painful positions." The Post notes
that the detention facilities at Bagram and elsewhere, such
as at Diego Garcia, are not monitored by the International Committee
of the Red Cross, which has monitored the U.S. treatment of
detainees at Guantanamo Bay, Cuba.
The absolute prohibition against torture
is a fundamental and well-established precept of customary and
conventional international law. Torture is never permissible
against anyone, whether in times of peace or of war.
The prohibition against torture is firmly
established under international human rights law. It is prohibited
by various treaties to which the United States is a party, including
the International Covenant on Civil and Political Rights (ICCPR),
which the United States ratified in 1992, and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, which the United States ratified in 1994. Article
7 of the ICCPR states that "No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment."
The right to be protected from torture is non-derogable, meaning
that it applies at all times, including during public emergencies
or wartime.
International humanitarian law (the laws
of war), which applies during armed conflict, prohibits the
torture or other mistreatment of captured combatants and others
in captivity, regardless of their legal status. Regarding prisoners-of-war,
article 17 of the Third Geneva Convention of 1949 states: "No
physical or mental torture, nor any other form of coercion,
may be inflicted on prisoners of war to secure from them information
of any kind whatever. Prisoners of war who refuse to answer
may not be threatened, insulted, or exposed to any unpleasant
or disadvantageous treatment of any kind." Detained civilians
are similarly protected by article 32 of the Fourth Geneva Convention.
The United States has been a party to the 1949 Geneva Conventions
since 1955.
The United States does not recognize
captured al-Qaeda members as being protected by the 1949 Geneva
Conventions, although Bush administration officials have insisted
that detainees will be treated humanely and in a manner consistent
with Geneva principles. However, at minimum, all detainees in
wartime, regardless of their legal status, are protected by
customary international humanitarian law. Article 75 ("Fundamental
Guarantees") of the First Additional Protocol to the Geneva
Conventions, which is recognized as restating customary international
law, provides that "torture of all kinds, whether physical
or mental" against "persons who are in the power of
a Party to the conflict and who do not benefit from more favorable
treatment under the [Geneva] Conventions," shall "remain
prohibited at any time and in any place whatsoever, whether
committed by civilian or military agents." "[C]ruel
treatment and torture" of detainees is also prohibited
under common article 3 to the 1949 Geneva Conventions, which
is considered indicative of customary international law.
II. Possible U.S.
Complicity in Torture
It is a violation of international law
not only to use torture directly, but also to be complicit in
torture committed by other governments. The Post reports being
told by U.S. officials that "[t]housands have been arrested
and held with U.S. assistance in countries known for brutal
treatment of prisoners." The Convention against Torture
provides in article 4 that all acts of torture, including "an
act by any person which constitutes complicity or participation
in torture," is an offense "punishable by appropriate
penalties which take into account their grave nature."
The Post article describes the rendition
of captured al-Qaeda suspects from U.S. custody to other countries
where they are tortured or otherwise mistreated. This might
also be a violation of the Convention against Torture, which
in article 3 states: "No State Party shall expel, return
('refouler') or extradite a person to another State where there
are substantial grounds for believing that he would be in danger
of being subjected to torture.... For the purpose of determining
whether there are such grounds, the competent authorities shall
take into account all relevant considerations including, where
applicable, the existence in the State concerned of a consistent
pattern of gross, flagrant or mass violations of human rights."
The U.S. Department of State annual report
on human rights practices has frequently criticized torture
in countries where detainees may have been sent. These include
Uzbekistan, Pakistan, Egypt, Jordan and Morocco. The United
States thus could not plausibly claim that it was unaware of
the problem of torture in these countries.
III. International
Prosecutions for Torture and Command Responsibility
Direct involvement or complicity in torture,
as well as the failure to prevent torture, may subject U.S.
officials to prosecution under international law.
The willful torture or inhuman treatment
of prisoners-of-war or other detainees, including "willfully
causing great suffering or serious injury to body or health,"
are "grave breaches" of the 1949 Geneva Conventions,
commonly known as war crimes. Grave breaches are subject to
universal jurisdiction, meaning that they can be prosecuted
in any national criminal court and as well as any international
tribunal with appropriate jurisdiction.
The Convention against Torture obligates
States Parties to prosecute persons within their jurisdiction
who are implicated or complicit in acts of torture. This obligation
includes the prosecution of persons within their territory
who committed acts of torture elsewhere and have not be extradited
under procedures provided in the convention.
Should senior U.S. officials become aware
of acts of torture by their subordinates and fail to take immediate
and effective steps to end such practices, they too could be
found criminally liable under international law. The responsibility
of superior officers for atrocities by their subordinates is
commonly known as command responsibility. Although the concept
originated in military law, it now is increasingly accepted
to include the responsibility of civil authorities for abuses
committed by persons under their direct authority. The doctrine
of command responsibility has been upheld in recent decisions
by the international criminal tribunals for the former Yugoslavia
and for Rwanda.
There are two forms of command responsibility:
direct responsibility for orders that are unlawful and imputed
responsibility, when a superior knows or should have known
of crimes committed by a subordinate acting on his own initiative
and fails to prevent or punish them. All states are obliged
to bring such people to justice.
***
The allegations made by the Washington
Post are extraordinarily serious. They have put the United States
on notice that acts of torture may be taking place with U.S.
participation or complicity. That creates a heightened duty
to respond preventively. As an immediate step, we urge that
you issue a presidential statement clarifying that it is contrary
to U.S. policy to use or facilitate torture. The Post's allegations
should be investigated and the findings made public. Should
there be evidence of U.S. civilian or military officials being
directly involved or complicit in torture, or in the rendition
of persons to places where they are likely to be tortured, you
should take immediate steps to prevent the commission of such
acts and to prosecute the individuals who have ordered, organized,
condoned, or carried them out. The United States also has a
duty to refrain from sending persons to other countries with
a history of torture without explicit and verifiable guarantees
that no torture or mistreatment will occur.
Thank you for your attention to these
concerns.
Sincerely,
Kenneth Roth
Executive Director
Cc: Colin Powell, Secretary of State
Donald Rumsfeld, Secretary of Defense
Condoleezza Rice, National Security Advisor
Kenneth Roth
is executive director of Human
Rights Watch.
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