To What Extent Has the Global War on Terrorism Violated Human Rights Around the World Since September 11th 2001

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How the War on Terror Violated Human Rights To What Extent Has The Global War On Terrorism Violated

Human Rights Around The World Since September 11th 2001?

Andrew Hill

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'We will not waver; we will not tire; we will not falter, and we will not fail. Peace and Freedom will prevail.'

George W. Bush

How the War on Terror Violated Human Rights

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How the War on Terror Violated Human Rights To What Extent Has The Global War On Terrorism Violated Human Rights Around The World Since

September 11th 2001?

Andrew Hill

Andrew Hill 2014

Andrew Hill

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Copyright © 2014 by Andrew Hill


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All rights reserved. This book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the publisher except for the use of brief quotations in a book review or scholarly journal. First Printing: 2014

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Dedication

To all those who lost their lives on September 11th 2001.

To all of their families and loved ones. And to all those who have died as a result since.


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Acknowledgements

I would like to thank my project supervisor for helping me achieve this, without her,

I would not be where I am today. I would like to thank my friends and family for the

endless times the read my work during its completion. I would also like to thank the

academics of the sources I used to help me put together this piece of work, without

you, I would not have a book.

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Abstract

9/11 caused disaster in the United States of America. On that day hundreds of people lost their lives. And many more have since. George W. Bush was soon to announce a War on Terror, this had lead to grave human rights violations, and consequently legislation and litigation. Throughout this book I will be examining just how human rights have been violated and how the courts have sought to deal with it. I will provide an overview of the violations in relation to acts such as arbitrary detention and extraordinary rendition. Most importantly who was to blame for these violations?


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Introduction

On September 11th 2001 the United States of America was hit by the most tragic terrorist attack in its history. In response to the attack, the president of the United States, George W. Bush declared a ‘war on terror’. This “war” has had serious consequences on the protection of Human Rights and Civil Liberties for many people1. The words “Terrorism” and “Human Rights” have varied definitions by several different people and bodies. I will mention these two words quite often throughout the essay, so for that reason I am going to define what I mean by “Terrorism” and “Human Rights” according to the Office of the United Nations High Commissioner for Human Rights. Firstly Human rights are defined as “universal values and legal guarantees that protect individuals and groups against actions or omissions that interfere with fundamental freedoms, entitlements and human dignity.” Human Rights are universal; they belong to all human beings and are indivisible2. There are several different laws, declarations, conventions and other legislation regarding what everyone’s human rights are. The three main pieces of legislation that I will be using are the “Geneva Convention”, the “International Covenant on Civil and Political Rights (ICCPR)” and the “European Convention on Human 1 http://projects.essex.ac.uk/ehrr/V8N1/Szurlej.pdf - 20/02/13 - p.1 2 www.ohchr.org/Documents/Publications/Factsheet32EN.pdf - 20/03/13 p.3

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Rights (ECHR)”, however I may refer to others as well. Secondly is the issue of terrorism. This is harder to define as it has never actually been defined in international law. Many bodies have tried to define it, but there isn’t a globally accepted definition. Terrorism is commonly defined as “acts of violence that target civilians in the pursuit of political or ideological aims3. In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism defined terrorism as “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes” and that such acts “are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them4.” These are the definitions that I will be using when I mention these words throughout the essay. Throughout this essay I am going to look at the activities of the Bush Administration along with other governments during the “war on terror”. I will analyse each branch of the government (political and judicial) and how their acts and omissions violated, or helped Human Rights.

The Violation of Habeas Corpus One of the most important violations of Human Rights is the restriction and suspension of Habeas Corpus. This is a writ that requires detainees to be brought

3 Ibid p.5 4 Ibid p.6


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before a judge and have fair trial. It is to ensure that people who are detained with insufficient evidence can be released. Articles 9-11 of the ICCPR give everyone the right of Habeas Corpus5. This has been restricted in many ways; one of these is through Arbitrary Detention. Arbitrary Detention is the arrest or detention of a person where there is no due process of law; where there is little or no evidence that they have committed a crime6. Arbitrary Detention breaches Articles 9 and 11 of ICCPR7. This is a clear violation of human rights law. One of the most infamous Arbitrary Detention centres is the Guantanamo Bay detention camp. Guantanamo Bay is a detainment and interrogation facility, located in Cuba, used by the US Military and CIA. The reasoning for it being located here is because of it being outside of the jurisdiction of US Law and apparently the Geneva conventions do not apply here8. The detentions here have incited many US and international court cases that focus mainly on the issue of Habeas Corpus. These court cases created a game of “legal ping pong” between the judicial and political branches of government in

5 http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf 22/02/13 p.3-4 6 http://www.hrw.org/reports/1997/indtimor/Indtimor-04.htm 22/02/13 7 http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf 22/02/13 p.3-4 8 http://www.hrca.org.au/hurights%20and%20terrorism.htm - 25/03/13

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America, this ultimately lead to the 2008 Boumediene Judgement9. In 2004 a series of cases came before the US courts regarding Arbitrary Detention and Habeas Corpus. The two main cases were Hamdi v. Rumsfeld and Rasual & Ors v. Bush. In the case of Hamdi v. Rumsfeld, the US Supreme Court held that US Nationals had certain constitutional rights, including the right to Habeas Corpus10. However it did not give the rights to non-US citizens. There were a limited number of cases that included US nationals as detainees, but where they were, the result of this case was of significant importance. The case of Rasual & Ors v. Bush gave the right of Habeas Corpus to the majority of detainees who were not US nationals. The court found that there was nothing to prevent habeas corpus being exercised for non-US nationals11. These cases illustrate how the judicial branch of the government was trying to uphold human rights law. In response to these judgements the government passed the Detainee Treatment Act 2005 (DTA), this piece of legislation made it clear that there was no right to habeas corpus for Guantanamo detainees12, this was going against the previous judgements made by the Supreme Court. This indicates how the government were trying to bypass court rulings in the form of creating new legislation. The next case,

9 Helen Duffy, ‘Human rights litigation and the "war on terror"’, in Toni Pfanner, International Review of the Red Cross, No. 871, (ICRC, Cambridge University Press, 2008), p.575 10 Ibid p.575 11 Ibid p.576 12 Ibid p. 576


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Hamdan v. Rumsfeld, is about how the DTA is an illegitimate law. The case claimed that the DTA had stripped Hamdan of his right to habeas corpus. The US Supreme Court avoided saying whether or not the act was constitutional, but did say that the law didn’t apply to him, because his case was on going at the time the legislation was adopted. The DTA allowed the restriction of habeas corpus on non US nationals, but the question of whether or not it was constitutional was unanswered until 2008 in the Boumediene Judgement. In Boumediene v. Bush the issue was finally resolved. The US Supreme Court ruled that “‘enemy combatants’ held by the United States in Guantanamo Bay have the right under US Constitution to challenge their detention before regular courts13”. This can be seen as one of the most important judgements the US Supreme Court made regarding the issue because it gives everyone the right to Habeas Corpus whilst detained in Guantanamo Bay or any other U.S detention centre. This illustrates how the legislative branch of the government is trying to violate human rights laws through the illegitimate detention of suspected terrorists. Article 9 of the ICCPR says “No one shall be subjected to arbitrary arrest or detention.14” The legislature is trying to breach this right by ignoring the judiciary and creating laws which breach human rights, such as the DTA. The judicial branch of the government in response is trying to uphold the law by passing judgements to say that arbitrary detention is

13 Ibid, p. 577 14 http://www1.umn.edu/humanrts/instree/b3ccpr.htm - 21/03/13

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illegal, as in Hamdi v. Rumsfeld and Rasual & Ors v. Bush. There have been similar situations in the UK regarding the lawfulness of detention. In 2004 the Belmarsh Judgement was made by the Court of the House of Lords (HoL). The case in question was A & Ors, the case was concerning the detention of non-UK nationals in Belmarsh Prison. The detainees were suspected to be involved in international terrorism; the Anti-Terrorism, Crime and Security Act 2001 allowed the detentions to take place15. When the case was brought before the court, they held that Section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the ECHR and that it discriminated against non-UK nationals. Lord Bingham also found the detentions to be in violation of Article 26 of the ICCPR16. This is the right that everyone is equal and should not be discriminated against17. These cases demonstrate how the government were creating laws that violate international human rights laws in that they affect writs such as habeas corpus or rights for example lawful detention. It can also be seen that the judiciary were trying to uphold international human rights laws and stop these violations being made by the government. This will develop throughout the different areas of human rights law that have been violated. 15 Sections 21-32 http://www.legislation.gov.uk/ukpga/2001/24/contents 22/02/13 16 http://lawbore.net/articles/pil1.pdf 23/02/13 p.1 17 http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf - 14/04/12 – p.8


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Preventive Detention The next issue is Preventive Detention. While this is not directly linked with human rights violations, there are elements which do violate human rights. Preventive detention has been heavily criticised for the seriousness of its unreliability and its consequences. Preventive Detention is defined as “an order permitting a person to be taken into custody, without criminal charge or trial, and deprived of their personal liberty by executive order for the purpose of preventing the detainee from committing an imminent terrorist act18.” The issue with this is that a person is being detained before he has committed a terrorist crime, predictions like this can be very unreliable. Preventive detention is in a way similar to arbitrary detention. The purpose of preventive detention is to prevent a terrorist attack from happening, often illegitimately; much like arbitrary detention is illegitimate; both require little or no evidence in order to be detained. Preventive detention is often based on little evidence or because the individual belongs to a particular group or race that can sometimes be known to commit terrorist crimes. It can be clearly seen that detaining someone in such a way cannot be valid because successful convictions require evidence. Someone detained through preventive detention has usually not been detained through evidence, but through secret intelligence. In criminal law there are concepts of “reasonable belief” before the police can arrest, usually based on evidence; however when it comes to preventive detention, orders of arrest are

18 Claire Macken, (Macken), (Routledge, 2011), p.102

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based on “reasonable ground to suspect”; this is much lower than what criminal law requires19. Basing detention on secret intelligence often causes evidence to be inadmissible in court, sometimes causing suspected terrorists to be set free. This is because of the threshold for criminal conviction is so high; a suspect can only be convicted if the evidence proves that they are guilty “beyond all reasonable doubt”, this means that it is almost certain that the suspect is guilty. Due to preventive detention being based on intelligence rather than evidence it is hard to convict a suspected terrorist “beyond all reasonable doubt”. Prediction can come with a high risk of error, especially mistaken identity. A case in the United Kingdom regarding the mistaken identity of a terrorist was fatal. A day after a failed bomb attack on the London underground on 25th July 2005, and two weeks after the 7/7 attacks, the Metropolitan Police Service shot and killed Jean Charles de Menezes at Stockwell tube station on the London underground20. It was found that his death was a case of mistaken identity. The police believed that he was Hussain Osman, a terrorist, who was later found guilty in 2007. An Independent Police Complains Commission report found that de Manezes “had nothing to do with terrorism and was, at the time of his death, travelling to work from his home address. He was unarmed; he was not carrying an explosive device21.” 19 Ibid p.124 20 Ibid p.112 21 http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/08_11_07_stockwell1.pdf - 28/3/13 - p.9


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This case shows how an innocent man can be killed due to prediction. It is clear that using predication as a form of evidence cannot be legitimate because of such cases as this one. This is also a violation of the right to life, as in Article 6 ICCPR22.

Abu Qatada The Abu Qatada case is a prime example of preventive detention. Abu Qatada was first detained in 2002 under Anti-terrorism, Crime and Security Act 200123 due to him being wanted on trial for terror charges in Jordan by its government. He is said to have links with Ayman al-Zawahiri, Osama bin Laden's deputy and he is also thought to be the spiritual guide of Mohamed Atta, one of the al-Qaida terrorists who piloted a jet into the World Trade Centre on 11 September 200124. He was detained in the United Kingdom before he had committed a crime, so he was detained through preventive detention. Qatada is often described as “Osama bin Laden's right-hand man in Europe25." He has been detained in the UK since 9/11 in jail without charge, but last year was released on bail with strict conditions. Qatata has been fighting extradition to Jordan for several years; the courts have ruled not to extradite him due to evidence in Jordon may have been obtained through torture; this is one of the most serious violations of human rights. Abu Qatada was arrested for allegedly

22 http://www1.umn.edu/humanrts/instree/b3ccpr.htm - 21/03/13 23 http://news.bbc.co.uk/1/hi/uk/2359595.stm - 15/03/13 24 http://www.guardian.co.uk/world/2012/feb/07/abu-qatada-spiritual-leader-islamist - 15/03/13 25 http://uk.reuters.com/article/2012/04/17/uk-britain-qatada-idUKBRE83G0UX20120417 - 13/03/13

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breaching his bail conditions on 8th March, 2013. He has allegedly used a mobile phone, which is banned under his bail conditions. Mr Justice Irwin has ruled he must return to Belmarsh prison26. The courts have consistently helped Qatadas Human Rights by not deporting him to Jordon. Both his preventive detention and his extradition to Jordan would violate Qatadas human rights. The preventive detention violates his right not to be detained without evidence against him; his extradition to Jordan would violate the human rights on torture. It is clear that preventive detention, using predictions and secret intelligence to fight terrorism is a violation of human rights law. Little evidence is ever found to prove that the individual did or was going to commit the terrorist act, so a conviction can never be possible. It can also be seen that using secret intelligence and predictions can cause serious errors. As in the de Manezes case when an innocent man was killed by the police due to mistaken identity caused by prediction. This is also a violation of the right to life. This is given to all British citizens through Article 2 of the ECHR27, which is incorporated into English Law through the Human Rights Act 199828. Manezes right to life, which is probably one of the most important of human rights, has been taken away because of the war on terror. 26 http://www.bbc.co.uk/news/uk-21727209 - 15/03/13 27 http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf - p.6 - 12/03/13 28 http://www.legislation (Open Society Institute).gov.uk/ukpga/1998/42/schedule/1 - 12/03/13


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Extraordinary Rendition Probably the most shocking of the violations are that acts of secret detention and extraordinary rendition. George Bush authorised the CIA to start a secret detention program where suspected terrorists would be detained outside the USA, the detainees would be subject to torture and other enhanced interrogation methods. The CIA were also authorised to engage in “extraordinary rendition29.” There is not an official definition of extraordinary rendition, however it is commonly defined as “the kidnapping and secret transfer of individuals without any process of law to various location and/or the third states for what has been referred to as the detention or torture by proxy30.” This is a clear violation of many human rights including arbitrary detention. Article 9 of the ICCPR says “No one shall be subjected to arbitrary arrest or detention31”. The rendition of fugitives was being practiced hundreds of years before 9/11; cases from the US Supreme Court can be found from 1886 for example,

29 Open Society Institute (OSI), Globalizing Torture: CIA Secret and Extraordinary Rendition, February 2013, ISBN: 978-1-936133-75-8, available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf - 1/3/13 -p.11 30 Helen Duffy, ‘Human rights litigation and the "war on terror"’, in Toni Pfanner, International Review of the Red Cross, No. 871, (ICRC, Cambridge University Press, 2008), p.587 31 http://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf 25/02/13 - p.5

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Ker v. Illinois32. In this case the court held that a fugitive kidnapped from abroad could not claim any violation of the U.S Constitution, laws or treaties of the United States33. From an early stage precedent has been set for justifying the practice of extraordinary rendition. Renditions have continued to happen ever since then, but not on as large a scale as after 9/11. In 1986 President Ronald Regan allegedly authorised renditions for suspects that face criminal charges in the United States, but only when extradition could not be used34. President Clinton continued to carry out rendition for criminal prosecution. These renditions were only on a small scale, they were nothing compared to the extraordinary renditions carried out by the Bush administration after 9/11. After the attacks on September 11th 2001 cases of extraordinary rendition increased rapidly. ‘Extraordinary Rendition’ is regarded as a practice that started after 9/11; the earlier practices by the US government are generally regarded as ‘renditions’. Within a few days of the attacks President Bush allegedly authorised the CIA to operate extraordinary renditions on suspect terrorists. As I previously 32 Open Society Institute (OSI), Globalizing Torture: CIA Secret and Extraordinary Rendition, February 2013, ISBN: 978-1-936133-75-8, available at: http://www.opensocietyfoundations. org/sites/default/files/globalizing-torture-20120205.pdf - 25/02/13 p.13 33 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=119&invol=436 - 07/03/13 34 http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf - 25/02/13 - p.14


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mentioned this beaches Article 9 of the ICCPR. However the detainees were transferred for the purpose of interrogation to countries that were well known for practicing torture, which is another violation of human rights. The fact that the renditions were to practice torture on the suspects makes them ‘extraordinary renditions’ rather than just ‘renditions’. According to a U.S. official who was directly involved in rendering captives to foreign governments said that, “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them35.” This demonstrates how government officials knew that when they were rendering the suspects to these countries, they were aware of the torture that they would face and probably wanted the torture to take place. This almost makes the government as bad as the terrorists themselves. Along with extraordinary rendition came secret detention. On September 17th 2001, President Bush authorised the CIA to operate a secret detention program36. Suspect terrorists would be secretly transported to black sites (CIA Prisons) that were located outside the U.S. The detainees were subjected to ‘enhanced interrogation techniques’, involving torture37. There is little practical different between secret detention end extraordinary rendition; 35 http://www.washingtonpost.com/wp-dyn/content/article/2006/06/09/AR2006060901356_2.html 12/3/13 36 Open Society Institute (OSI), Globalizing Torture: CIA Secret and Extraordinary Rendition, February 2013, ISBN: 978-1-936133-75-8, available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf - 13/02/13 p.15 37 Ibid p.15

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they both use the secret abduction of suspects, enhanced interrogation and torture. These are serious violations of many human rights laws, including Article 7 ICCPR, Article 9 ICCPR and many more. The CIA have used around 28 countries that operate ‘black sites’ for their use, with a total number of prisons of about 100, the full scope is currently unknown38 . Some of the countries that held suspects on behalf of the CIA include: “Algeria, Azerbaijan, Bosnia, Djibouti, Egypt, Ethiopia, Gambia, Israel, Jordan, Kenya, Kosovo, Libya, Lithuania, Mauritania, Morocco, Pakistan, Poland, Qatar, Romania, Saudi Arabia, Syria, Somalia, South Africa, Thailand, United Kingdom, Uzbekistan, Yemen, and Zambia39.” The reasoning behind rendering suspect terrorists to these counties was because many of them are known for practicing torture as an interrogation technique. The U.S government wanted information on terrorism and Al-Qaeda so they resorted to using the most extreme methods of retrieving information. But this usually did not work. By partaking in these methods of interrogation the U.S. government have violated a series of human rights laws. One of the most shocking extraordinary rendition and secret detention cases coming out of the war on terror is that of Khalid el-Masri. This was an apparent case of mistaken identity. El-Masri is a German citizen; on 31st December 2003 El-Masri was at the border of Macedonia heading to Skopje, Macedonia for a short 38 Ibid p.61 39 http://pubrecor (Ross n.d.)d.org/torture/7326/two-dozen-countries-complicit-torture/ - 13/02/13


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vacation40. At the border he was detained due to him allegedly having the same name as an Al-Qaeda suspect. He was then handed over to the CIA and transported to a ‘black site’ in Afghanistan. El-Masri was held there for 14 months, accused of being a terrorist, and tortured for information. He was of course falsely accused so could not give the CIA any information. Over time it became apparent to the CIA that his passport was genuine and had been in no way related to terrorist activities. In May 2004 he was released and dumped on an isolated road in Albania41. El-Masri was not helped to get back home and was left to help himself. A lawsuit was brought before the US Courts regarding the incident, but the case was dismissed in May 2006 on the basis that “allowing the case to proceed would jeopardize state secrets, despite the fact that Mr El-Masri's story was already known throughout the world42.” This ruling was upheld by the US Court of Appeal, and in October 2007, without giving a reason, the US Supreme Court decided not to review the

40 Satterthwaite, Margaret L., The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror' (December 4, 2008). HUMAN RIGHTS ADVOCACY STORIES, Hurwitz, Satterthwaite, & Ford, eds., 2009; NYU School of Law, Public Law Research Paper No. 08-64. Available at SSRN: http://ssrn.com/abstract=1311622 – 12/03/13 p.536 41 Helen Duffy, ‘Human rights litigation and the "war on terror"’, in Toni Pfanner, International Review of the Red Cross, No. 871, (ICRC, Cambridge University Press, 2008), p.588 42 http://www.aclu.org/national-security/el-masri-v-tenet - 12/03/13

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case43. In this case, unlike others, the judicial branch of the US government did not help upholding of human rights. This case shows various violations of human rights laws through extraordinary rendition and secret detention, including arbitrary detention and torture. It also is an example of how easy it is for the CIA to falsely identify someone, which makes the situation even worse when the individual is subject to torture. The CIA Inspector General whom has investigated many extraordinary renditions told the Washington Post “They picked up the wrong people, who had no information. In many, many cases there was only some vague association [with terrorism]44”. This clearly shows how the CIA often gets it wrong when detaining suspected terrorists. Detaining the wrong people is unacceptable, but when the detainees are subjected to torture, it makes it a significantly worse, especially when the detainees are in fact innocent.

Torture The final and most serious of the violations is torture. It is one of the rights that can never be restricted even in times of ‘public emergency which threatens the life of a nation45’.

43 Helen Duffy, ‘Human rights litigation and the "war on terror"’, in Toni Pfanner, International Review of the Red Cross, No. 871, (ICRC, Cambridge University Press, 2008), p.589 44 http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476.html - 12/03/13 45 http://www.hrca.org.au/hurights%20and%20terrorism.htm - 25/03/13


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Torture is defined in the United Nations Convention against Torture Article 1.1 as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity46.” Practices of torture have become regular during the war on terror through acts such as arbitrary detention and extraordinary rendition. Through the CIA’s secret detention program about a third of the detainees have been questioned using ‘enhanced interrogation techniques’ and torture47 The techniques that they used are explicit, some of them include: ‘cramped confinement’, ‘insult slaps’, ‘forced nudity’, ‘sleep deprivation’ and ‘waterboarding’. Waterboarding is one of the most serious of the ‘enhanced interrogation’ techniques. The technique includes binding the detainee to a bench with his feet above his head, placing a cloth over his mouth and nose while pouring water onto the cloth. Airflow is

46 http://www.hrweb.org/legal/cat.html - 15/3/13 47 Open Society Institute (OSI), Globalizing Torture: CIA Secret and Extraordinary Rendition, February 2013, ISBN: 978-1-936133-75-8, available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf - 15/03/13 p.16

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restricted for 20 to 40 seconds in order to produce the sensation of drowning and suffocation48. The four Geneva Conventions protect people who fall into enemy hands from torture, such as waterboarding, in wartime49. Waterboarding was applied to only three detainees, Khaled Shaikh Mohamed, Abu al Rahim al Nashiri and Abu Zubaydah50, who were detained through extraordinary rendition. One of the most well-known cases is Abu Zubaydah. He suffered rendition, torture and secret detention by the US government51. On 1st August 2002, a memorandum was signed authorising the use of 10 specific interrogation methods by the CIA on Zubaydah, including waterboarding and ‘insult slapping52’. A case was filed before the European Court of Human Rights (ECtHR) against Lithuania for his enforced disappearance, torture and ill-treatment. Zubaydah wanted an ECtHR ruling to reassert his human rights so he could be freed from the CIA detention facility in Lithuania. However the court is yet

48 Ibid p.16 49 http://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf - p.24 – 20/03/13 50 Open Society Institute (OSI), Globalizing Torture: CIA Secret and Extraordinary Rendition, February 2013, ISBN: 978-1-936133-75-8, available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf - p.16 – 20/03/13 51 http://www.interights.org/abu-zubaydah-v-lithuania/index.html - 20/03/13 52 Open Society Institute (OSI), Globalizing Torture: CIA Secret and Extraordinary Rendition, February 2013, ISBN: 978-1-936133-75-8, available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf - p.17 – 20/03/13


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to make a ruling. Zubaydah has now been detained in Guantanamo Bay for nearly ten years without ever being charged with a crime. Due to the torture that he was subjected to, he now suffers from mental and physical health problems. Zubaydah has permanent brain damage, the CIA removed his left eye and he has suffered from more than 300 seizures since 200853. This illustrates how serious the effects on the war on terror have been. This is one of the most serious violations of human rights that the CIA have carried out, violating many human rights laws, specifically torture. The ECtHR are still to make a ruling on the torture he was subjected to. The Zubaydah case shows the extent of the human rights crimes that have come out of the war on terror. A well-known case regarding the British army subjecting Iraqi detainees to torture is the Baha Mousa case. On 14th September 2004, British soldiers raided a hotel in Iraq looking for enemy insurgents; among those arrested was Baha Mousa, a 26 year old hotel worker54. He was taken to an army base in Basra where he was interrogated and tortured, which subsequently lead to his death on 15th September55. The Baha Mousa inquiry found that neither Mousa nor any other of the men captured where enemy insurgents. The interrogation/torture methods used included “hooding, stress positioning, and withholding 53 Ibid p.17 54 http://www.birw.org/inquiries/BahaMo (British Irish Rights Watch 2012)usaExecutiveSummary.pdf 26/4/13 55 ibid

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of food and water56”. This case raised many fundamental human rights issues. These where: does the ECHR apply to the actions of British soldiers serving outside the Council of Europe? Did he have a right to life, freedom from torture, and the right to a fair trial? The ECtHR agreed that the ECHR applied57. The HoL upheld all of his rights. They said that “Since Baha Mousa died in British custody at the hands of British soldiers in an area under UK jurisdiction, his case self-evidently engages A. 2 of the Convention, which protects the right to life58.” Baha Mousa suffered 93 separate injuries, the HoL said, “Baha Mousa’s right under Article 3 of the Convention to freedom from torture had been violated59.” Due to Mousa being a civilian, not a prisoner of war, arrested by British soldiers, the HoL said “Article 6 of the European Convention on Human Rights came into play60”. At a mediation session headed by Lord Woolf, the MoD agreed to pay out £3m to the victims of this case, most of it going to the family of Baha Mousa61. Under international law states are prohibited to transfer detainees to countries where they may be subjected to torture or ill treatment. The U.N.

56 ibid 57 ibid 58 ibid 59 ibid 60 ibid 61 http://www.telegraph.co.uk/news/worldnews/middleeast/iraq/2281567/MOD-in-3m-abuse-pay-out-to-Baha-Mousa-and-nine-other-Iraqi-torture-victims.html 26/04/13


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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Article 3, says that “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 torture62.” The U.S. implemented this law through the Foreign Affairs Reform and Restructuring Act 199863. The United States government have violated Article 3 of CAT through many cases; one of the more serious is that of Ahmed Agiza. The Committee against Torture found that the extraordinary rendition of Ahmed Agiza breached Article 3 of CAT64. Agiza was rendered to Egypt where he was severely tortured he “was subjected to electric shocks”65. According to Agiza, he was imprisoned and tortured for a year in the State Security prison in Nasr City; he was also held Tora prison for two years. In April 2004 Agiza was sentenced to 25 years imprisonment. The court, without explanation, denied his requests for a forensic medical examination to prove his allegations of torture66. The Human Rights Watch said that “the proceedings did not fulfil internationally recognized due process requirements.” The trial, as well as the rendition Agiza was subjected to violated human rights laws.

62 http://www.hrweb.org/legal/cat.html - 26/03/13 63 Open Society Institute (OSI), Globalizing Torture: CIA Secret and Extraordinary Rendition, February 2013, ISBN: 978-1-936133-75-8, available at: http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf - p.26 – 26/03/13 64 Ibid p.25 – 4/04/13 65 Ibid p.31 – 4/04/13 66 Ibid

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In torture cases coming to light, many governments have tried to re-define torture in order to “justify it”67. The UK government tried to re-define torture in the cases of Ramzy v Netherlands and Saadi v Italy68. The case of Ramzy v Netherlands was a deportation case to Algeria. The courts where faced with the question whether or not Ramzy was in danger of torture if he returned to Algeria. The UK government tried to argue that “in the light of the growth of ‘Islamist extremist terrorism’ the Court should re-examine the relationship between protection from ill-treatment and ‘national security’ interests69”. What they meant was a ‘balancing test’; the risk to national security could justify an imminent risk to torture. At the same time the case of Saadi v Italy was running at the ECtHR. The UK government also tried using the ‘balancing test’. The court held in a unanimous judgement of prohibiting the transfer of individuals to countries where they face an immanent risk of torture. This is another example of the government wanting to violate human rights laws and the judiciary upholding the law. The final issue concerning torture is the admissibility of evidence obtained by torture. It is apparent that torture can never be an admissible from of evidence due to torture violating many international human rights laws, including Article 15 of the against Torture, which specifically prohibits the use of 67 Helen Duffy, ‘Human rights litigation and the "war on terror"’, in Toni Pfanner, International Review of the Red Cross, No. 871, (ICRC, Cambridge University Press, 2008), p.585 68 Ibid p.585 69 Ibid p.585


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evidence obtained through torture70. The UK case A & Ors v. Secretary of State for the Home Department (No.2)71. The case concerned the admissibility of evidence obtained through torture by foreign states. The Court of Appeal stated that evidence obtained through torture by UK officials is inadmissible, but when the UK is not responsible for the torture, it is admissible72. On appeal, the HoL rejected this saying ‘torture is torture no matter who does it, and such evidence can never be admitted in legal proceedings73.’ This judgement reassured and confirmed the human rights of individuals suspected of terrorism, and reasserted the laws regarding the use of evidence obtained through torture. Due to this judgement evidence obtained through torture cannot be used in legal proceedings in the UK. This again highlights the judiciary is pro-actively attempting to stop these human rights violations from taking place by interpreting the law in order to do so.

Is This The End? The ‘War on Terror’ has caused several very serious human rights violations throughout the world. Many of these violations have been taken out by governments in order to obtain information on terrorism or to

70 http://www.hrweb.org/legal/cat.html - 29/04/13 71 http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand-1.htm 29/04/13 72 Helen Duffy, ‘Human rights litigation and the "war on terror"’, in Toni Pfanner, International Review of the Red Cross, No. 871, (ICRC, Cambridge University Press, 2008), p.587 73 Ibid p.587

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prevent terrorist attacks from happening. However these methods rarely ever work74. The use of torture, for example, has never given the government any leads on terrorism, or terrorist leaders, causing it all to be in vain. I have come to the conclusion that the political branches of the governments were violating or attempting to violate the human rights laws. However the judiciary were trying to help and uphold the law regarding human rights. The US Government was violating the right to habeas corpus through acts such as arbitrary detention and extraordinary rendition, and through legislation such as the DTA. This shows the political branch of the government violating the laws. In the Boumediene Judgement the US Supreme Court gave the right to habeas corpus to ‘enemy combatants’; This shows the judicial branch upholding human rights laws. This was a very significant judgement for the rights of ‘enemy combatants’. The same happened with the UK Government passing the Anti-terrorism, Crime and Security Act, and the HoL upholding the law by ruling its incompatibility with the ECHR. In regards to preventive detention, the judiciary in the UK are upholding the rights of Abu Qatada by not deporting him to Jordon where he and others may face torture for his trial. However I have found an exception to this. In the El-Masri case, where he was rendered and falsely accused of being involved in terrorism, the courts without giving a reason dismissed the case. This shows the judiciary hindering human rights, effectively, by not hearing the

74 http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476.html 30/04/13


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case; the courts were saying El-Masri’s rendition was lawful. For the most of the period since the War on Terror started, the judiciary has helped human rights and the political branch of the government have hindered human rights. This is mainly shown in torture cases. This can be seen in the UK Baha Mousa case. Mousa was detained in an Iraq prison, tortured, which subsequently caused his death. Both the ECtHR and the HoL heard this case, both upholding Mousa’s human rights, and ruling that the MoD should pay compensation to the families affected, this again showing the political branch violating rights, and the judiciary upholding them. The War on Terror has clearly violated human rights throughout the world, violating international human rights laws such as the ICCPR and the ECHR. The rights of individuals have been violated in 5 main areas; Habeas Corpus, Arbitrary Detention, Preventive Detention, Extraordinary Rendition and Torture. Is this a war that can ever be won? It is most likely that it cannot. There will always be extremist groups trying to inflict terror, and the government will always want to try and stop this. It is also highly likely that governments will try and do everything in their power to try and fight terrorism, including the violation human rights. These rights will try to be protected, but until this war can end, human rights will continue to be violated.

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Bibliography A and others v Secretary of State for the Home Department. (Court of Appeal, 2004). BBC. Abu Qatada detained over alleged bail breach. http://www.bbc.co.uk/news/uk-21727209. —. Cleric held as terror suspect. http://news.bbc.co.uk/1/hi/uk/2359595.stm. Booth, Robert. Abu Qatada: spiritual leader for deadly Islamist groups? 2012. http://www.theguardian.com/world/2012/feb/07/abu-qatada-spiritual-leader-islamist. Castle, Tim. Government says will deport radical cleric Abu Qatada. http://uk.reuters.com/article/2012/04/17/uk-britain-qatada-idUKBRE83G0UX20120417. Europe, Council of. ECHR. http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf. EN. ICCPR. http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf. Duffy, Helen. "Human Rights Litigation and the 'war on terror'." International Reveiew of the Red Cross, 2008: 573-597. Independent Police Complaints Commission. "Investigation into the shooting of Jean Charles de Menezes at Stockwell underground station on 22 July 2005." Human Rights Watch. V. HUMAN RIGHTS VIOLATIONS BY THE INDONESIAN ARMED FORCES. http://www.hrw.org/reports/1997/indtimor/Indtimor-04.htm. KER v. PEOPLE OF STATE OF ILLINOIS. (US Supreme Court, 1886).


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Macken, Claire. Counter-terrorism and the Detention of Suspected Terrorists: Preventive Detention and International Human Rights Law. London: Routledge, 2011. Minisota, University of. ICCPR. http://www1.umn.edu/humanrts/instree/b3ccpr.htm. OHCHR. FactSheet. www.ohchr.org/Documents/Publications/Factsheet32EN.pdf . Open Society Institute. "Golbalizing Torture." CIA Secret and Extraordinary Rendition, 2013. Parliament. Human Rights Acr 1998. 1998. http://www.legislation.gov.uk/ukpga/1998/42/schedule/1. Parliament, UK. Anti-terrorism, Crime and Security Act 2001. http://www.legislation.gov.uk/ukpga/2001/24/contents . Szurlej. Protecting Human Rights while Countering Terrorism a Decade after 9/11. http://projects.essex.ac.uk/ehrr/V8N1/Szurlej.pdf . SIDOTI, CHRIS. HUMAN RIGHTS AND THE WAR ON TERRORISM. http://www.hrca.org.au/hurights%20and%20terrorism.htm.

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