ZGram - 12/27/2002 - "United States: Reports of Torture of
Al-Qaeda Suspects"
irimland@zundelsite.org
irimland@zundelsite.org
Sat, 28 Dec 2002 04:32:33 -0800
ZGram - Where Truth is Destiny
December 27. 2002
Good Morning from the Zundelsite:
A rather startling development! After German television networks
actually ran a tape showing torture committed by US troops, it will
be impossibly to deny that it happened. How will the government
react?
The story bears watching!
[START]
United States: Reports of Torture of Al-Qaeda Suspects
(New York, December 27, 2002) - The Bush administration must promptly
investigate and address allegations of torture of suspected al-Qaeda
detainees or risk criminal prosecution, Human Rights Watch said
today. In a letter to President George W. Bush, Human Rights Watch
said it was "deeply concerned" by allegations made in the Washington
Post that detainees had been subjected to torture or other forms of
mistreatment while in U.S. custody in Afghanistan or while held by
U.S. allies.
------------------------------------------------------------------------
"Torture is always prohibited under any circumstances," said Kenneth
Roth, executive director of Human Rights Watch. "U.S. officials who
take part in torture, authorize it, or even close their eyes to it,
can be prosecuted by courts anywhere in the world."
The Post article, "U.S. Decries Abuse but Defends Interrogations,"
http://www.washingtonpost.com/wp-dyn/articles/A37943-2002Dec25.html
describes how persons held in the CIA interrogation center at Bagram
air base in Afghanistan are being subject to "stress and duress"
techniques, including "standing or kneeling for hours" and being
"held in awkward, painful positions." Such acts, if true, violate
international legal prohibitions against torture and other
ill-treatment under treaties that the United States has ratified.
These prohibitions apply in times of war as well as peace and protect
all captured combatants, whether privileged or not, as well as
civilians, whether criminal suspects or not.
The Post article states that thousands of persons have been arrested
and detained with U.S. assistance in countries known for the brutal
treatment of prisoners. The Convention against Torture, which the
United States has ratified, specifically prohibits torture and
mistreatment, as well as sending detainees to countries where such
practices are likely to occur. That would include, according to the
U.S. State Department's own annual human rights report, Uzbekistan,
Pakistan, Jordan and Morocco, where detainees have reportedly been
sent.
Direct involvement or complicity in torture, as well as the failure
to prevent torture by subordinates, may subject U.S. officials to
prosecution under international law. Such acts are "grave breaches,"
or war crimes, under the 1949 Geneva Conventions. In addition, the
Convention against Torture obligates all countries to prosecute
persons within their jurisdiction who are implicated or complicit in
acts of torture. Any competent court anywhere in the world is
required to prosecute violations of
the prohibition against torture. Moreover, 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 would be criminally liable under international law for "command
responsibility."
"The allegations made by the Washington Post put the United States on
notice that acts of torture may be taking place with U.S.
participation or complicity," said Roth. "That places a heightened
duty on senior Bush administration officials to take preventive steps
immediately."
Human Rights Watch urged President Bust to issue a presidential
statement that it is contrary to U.S. policy to use or facilitate
torture in any circumstances. It also urged the president to promptly
launch an investigation into the Post's allegations and to make the
findings public. Should there be evidence of U.S. civilian or
military officials' involvement or complicity in torture, or in the
rendition of persons to places where they are likely to be tortured,
the administration should take immediate steps to stop these actions
and to prosecute those who have ordered, organized, condoned, or
carried them out. The United States has a duty not to send persons to
countries with a history of torture without explicit, verifiable
guarantees that they will not be tortured or otherwise mistreated.
Please see below to read the Human Rights Watch letter to President Bush.
December 26, 2002
President George W. Bush
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
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
Guant=E1namo 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=8A. 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
[END]
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(Source: http://www.hrw.org/press/2002/12/us1227.htm )