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Accountability for Human Rights Abuses by the United States
Thematic Hearing before the Inter-American Commission on
Human Rights
March 20, 2009
Order of Presentation
Other members of our delegation include: Theresa Harris, Human Rights USA Piper Hendricks, Human Rights USA Lynne Kates, Center for Constitutional Rights Jamil Dakwar, American Civil Liberties Union
Colleen CostelloHuman Rights USA
Summary of Facts
Legal Obligations Under International and Regional Human Rights Law
Michael Ratner
Center for Constitutional Rights
Obstacles to Accountability and Justice
Analysis of Proposed Accountability Mechanisms
Purpose of This Hearing Address the United States Government’s
failure, thus far, to hold persons accountable for detainee abuse, torture, and other human rights abuses.
Seek specific recommendations by the Commission that the United States Government satisfy its legal obligations as to these abuses.
Summary of FactsIncontrovertible evidence exists of detainee abuse committed by U.S. Government officials and military personnel.
ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody
February 2007
Suffocation by water or waterboarding Prolonged stress standing Beating by use of a collar Confinement in a box Prolonged nudity Sleep deprivation Subjection to noise and cold water Denial of solid food
“The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”
Summary of Facts
Report of the U.N. Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Torture, rendition, systemic nature of abuse, improper concealment of illegal acts, human rights obligations
March 2009
Susan B. Crawford, Convening Authority of Military Commissions at Guantanamo Bay
Torture January 2009
Senate Armed Services Committee Torture, systemic nature of abuse, involvement of senior U.S. Government officials
December 2008
Physicians for Human Rights Torture June 2008
United Nations Human Rights Committee Rendition, torture, involvement of U.S. civilian and military officials
September 2006
Inter-American Commission on Human Rights Transfer, rendition July 2006
The European Parliament Rendition June/July 2006
Amnesty International Rendition April 2006
U.S. Federal Bureau of Investigation Torture, cruel, inhuman, and degrading treatment
January 2006
Center for Human Rights and Global Justice Rendition June 2005
Report by Ret. General Antonio Taguba Torture, “systemic and illegal” nature of abuse
January 2004
Examples of reports and statements confirming these abuses:
Summary of FactsHigh-ranking former Government officials have publicly admitted to authorizing the use of torture on detainees.
Former President BushJanuary 11, 2009
Summary of Facts
The United States
Government has yet to hold
high-ranking officials
accountable for these
abuses.
Summary of FactsRather, the current administration has indicated its disinclination to hold human rights abusers accountable:
“The prospect of individual liability increases the likelihood that officials will make decisions based upon fear of litigation rather than appropriate military policy.” U.S. Department of Justice, Supplemental Brief, Rasul v. Rumsfeld, March 12, 2009.
“Two Obama advisers said there's little—if any—chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.” Advisers to President-elect Obama, Huffington Post, Nov. 18, 2008.
Legal ObligationsThe United States has a legal obligation to effectively investigate, prosecute, and punish those responsible for human rights violations, and to protect victims’ rights to truth, justice, and reparation for these crimes.
American Declaration on the Rights and Duties
of Man
International human rights law
U.S. domestic law
Article I Article II Article XVIII Article XXV Article XXVI
Convention Against Torture International Covenant on Civil and Political Rights Customary International Law
Torture Statute War Crimes Act Geneva Conventions and laws of war Federal Criminal Law
Legal ObligationsDuty to Investigate, Prosecute, and Punish
Enforcement of the law will: Promote respect for the rule of law
Provide justice and healing to victims
Deter the commission of human rights abuses
Failure – or refusal – to hold criminals accountable will: Generate impunity
Deny victims their right to justice
Condone human rights violations
Create conditions that increase the likelihood of torture
Reduce the United States’ credibility
Legal ObligationsThe United States has a duty
to protect victims’ rights:
Right to Truth Effective investigation
Reveal the facts Reveal the extent of the Government’s involvement
Identify those responsible
Right to Justice Prompt recourse to a competent tribunal
Right to Reparation Sufficient Effective Prompt
Proportionate
Obstacles to AccountabilityDenying Access to the Courts
The Military Commissions Act
Denial of Geneva Conventions Protections
Section 5 prohibits any person from: Invoking Geneva Conventions as source of rights In habeas or civil proceedings Against current or former U.S. officials or military
personnel
This provision: Precludes enforcement of basic human rights protections Denies victims right to justice Inhibits victims’ right to reparation
Obstacles to AccountabilityDenying Access to the Courts
The Military Commissions Act
Denial of Access to Courts
Section 7 denies alien detainees: The right to habeas corpus Access to U.S. courts for any other action
Applies to detainees held since 9/11/01
This provision: Denies victims access to courts and right to justice Eliminates possibility of obtaining reparation Deprives victims of right to truth
Obstacles to AccountabilityDenying Access to the Courts
The Military Commissions Act
Redefining War Crimes
Section 6 redefines war crimes by: Removing “humiliating and degrading treatment” entirely Defining “cruel or inhuman treatment” more narrowly if
committed after 10/17/06
This provision: Prevents punishment of war crimes Deprives victims of right to truth Condones serious human rights abuses Creates impunity Denies right to justice
Obstacles to AccountabilityUsing Immunities and Defenses to
Impede Accountability
The Military Commissions Act
“Advice of Counsel” Defense
Section 8(b) precludes culpability for war crimes: Approved by the U.S. Government Authorized by “advice of counsel” Occurring between 9/11/01 – 1/30/05
This provision: Grants immunity to human rights abusers Violates international law Creates a culture of impunity Precludes civil and criminal accountability Denies right to truth, justice, and reparation
Obstacles to AccountabilityUsing Immunities and Defenses to
Impede Accountability
Misuse of the State Secrets Doctrine
Intended Purpose: Evidentiary privilege Withhold specific evidence to protect national security
Misuse: Invoked to have cases dismissed entirely
This practice: Prevents victims from knowing truth about abuses Denies justice to detainees and other victims Shields perpetrators from accountability
Obstacles to AccountabilityUsing Immunities and Defenses to
Impede Accountability
“Qualified Immunity” Defense
Intended Purpose:
Protect officials from frivolous lawsuits
Misuse: Invoked to preclude liability for torture and other abuse Claimed detainees’ right to freedom from torture “not
clearly established”
This practice: Prevents victims from knowing truth about abuses Denies victims right to justice Precludes possibility of obtaining reparation
Obstacles to AccountabilityUsing Statutes of Limitation to
Preclude Prosecutions
Existing statutes of limitation: Most U.S. federal crimes: 5 years. Torture (not resulting in death): 8 years. Torture (resulting in death): none. Conspiracy: 5 years.
Statutes of limitation for human rights abuses:
Violate international law Impede victims’ rights to justice and reparation Contribute to an environment of impunity
The United States Government must: Initiate criminal investigations into abuses Amend U.S. law to toll or repeal statutes of limitations
Obstacles to AccountabilityBilateral Immunity Agreements (BIAs)
BIA Policy: United States has signed 100+ BIAs with other countries Congress recently rescinded legislation authorizing the BIA
policy But BIAs have not yet been revoked
Enforcement of BIAs would: Grant immunity for war crimes and crimes against humanity Deny right to redress and justice Encourage countries to ignore obligation to punish abuses
The United States Government should: Revoke BIAs Sign and ratify Rome Statute
Proposed Accountability Measures
Various accountability measures might be used to address these abuses:
Criminal investigations and prosecutions
Commissions of inquiry
FOIA requests and litigation
Reparations
Proposed Accountability Measures
Criminal Investigations and Prosecutions
The United States has a legal obligation to conduct criminal investigations and prosecutions of human rights abuses.
Criminal trials would: Restore victims’ rights to truth and justice Afford victims and society right to know extent of
Government’s involvement Deter future abuses Reaffirm commitment to human rights and rule of law
The United States Government must: Effectively investigate human rights violations Identify perpetrators Prosecute and punish those responsible
Proposed Accountability Measures
Commissions of inquiry
A commission of inquiry would: Afford victims and society the facts about abuse Identify those responsible
A commission of inquiry would not: Hold perpetrators accountable Grant reparations to victims Satisfy the United States’ legal obligations, if immunity is
granted
The United States must: Effectively investigate human rights abuses Identify those responsible
Proposed Accountability Measures
FOIA requests and litigation
Used to secure information about violations of law committed by United States Government officials
But only provide a partial view, and cannot serve as primary means of obtaining truth about abuses
The United States Government itself must investigate:
abuses committed
extent of the Government’s role in those abuses
rationale for the decisions to implement these policies
ramifications of these events
Proposed Accountability Measures
Reparations
The following forms of reparation may be required:
Restitution Restore victims to place of residence or another country
where they will be safe from harm Compensation for:
Physical or mental harm Lost opportunities and lost earnings Medical and legal fees
Rehabilitation, including: Medical or psychological care Social or legal services
Satisfaction Reveal truth about abuses Issue public apology
ConclusionEvidence of human rights violations committed by United States Government officials is incontrovertible.
To meet its legal obligations, United States Government must: promptly and effectively investigate abuses
ensure those responsible are held to account
provide adequate reparation to victims of abuse
RequestIssue recommendations that the United States Government:
1. Initiate criminal investigations and prosecutions
2. Reform laws that deny victims the right to truth, justice, and reparation
3. Undertake other institutional reforms necessary to bring Government into compliance with international legal obligations
4. Make any and all necessary reparations, including issuing a public apology to victims