Transcript Accountability for Human Rights Abuses by the United States

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
Colleen Costello
Human Rights USA

Summary of Facts
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Legal Obligations Under International and
Regional Human Rights Law
Michael Ratner

Obstacles to Accountability and Justice
Center for
Constitutional Rights

Analysis of Proposed Accountability Mechanisms
Other members of our delegation include:
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Theresa Harris, Human Rights USA

Piper Hendricks, Human Rights USA

Lynne Kates, Center for Constitutional Rights

Jamil Dakwar, American Civil Liberties Union
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 Facts
Incontrovertible 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
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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 illtreatment, either singly or in combination, constituted cruel,
inhuman or degrading treatment.”
Summary of Facts
Examples of reports and statements confirming these abuses:
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
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
The European Parliament
Rendition
June/July 2006
Amnesty International
Rendition
April 2006
U.S. Federal Bureau of Investigation
Torture, cruel, inhuman, and
degrading treatment
Center for Human Rights and Global Justice
Rendition
Report by Ret. General Antonio Taguba
Torture, “systemic and illegal”
nature of abuse
January 2009
July 2006
January 2006
June 2005
January 2004
Summary of Facts
High-ranking former Government officials have publicly
admitted to authorizing the use of torture on detainees.
Former President Bush
January 11, 2009
Summary of Facts
The United States
Government has yet to hold
high-ranking officials
accountable for these abuses.
Summary of Facts
Rather, 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.
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“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 Obligations
The 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
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Article
Article
Article
Article
Article
I
II
XVIII
XXV
XXVI
International
U.S. domestic law
human rights law
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Convention Against
Torture
International
Covenant on Civil
and Political Rights
Customary
International Law
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Torture Statute
War Crimes Act
Geneva Conventions
and laws of war
Federal Criminal Law
Legal Obligations
Duty to Investigate, Prosecute, and Punish
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Enforcement of the law will:
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Promote respect for the rule of law
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Provide justice and healing to victims
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Deter the commission of human rights abuses
Failure – or refusal – to hold criminals accountable
will:
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Generate impunity
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Deny victims their right to justice
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Condone human rights violations
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Create conditions that increase the likelihood of torture
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Reduce the United States’ credibility
Legal Obligations
The 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
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Right to Justice
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Prompt recourse to a competent tribunal
Right to Reparation
Sufficient
 Effective
 Prompt
Proportionate
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Obstacles to Accountability
Denying Access to the Courts
The Military Commissions Act
Denial of Geneva Conventions Protections
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Section 5 prohibits any person from:
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Invoking Geneva Conventions as source of rights
In habeas or civil proceedings
Against current or former U.S. officials or military
personnel
This provision:
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Precludes enforcement of basic human rights protections
Denies victims right to justice
Inhibits victims’ right to reparation
Obstacles to Accountability
Denying Access to the Courts
The Military Commissions Act
Denial of Access to Courts
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Section 7 denies alien detainees:
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The right to habeas corpus
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Access to U.S. courts for any other action
Applies to detainees held since 9/11/01
This provision:
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Denies victims access to courts and right to justice
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Eliminates possibility of obtaining reparation
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Deprives victims of right to truth
Obstacles to Accountability
Denying Access to the Courts
The Military Commissions Act
Redefining War Crimes
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Section 6 redefines war crimes by:
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Removing “humiliating and degrading treatment” entirely
Defining “cruel or inhuman treatment” more narrowly if
committed after 10/17/06
This provision:
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Prevents punishment of war crimes
Deprives victims of right to truth
Condones serious human rights abuses
Creates impunity
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Denies right to justice
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Obstacles to Accountability
Using Immunities and Defenses to
Impede Accountability
The Military Commissions Act
“Advice of Counsel” Defense
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Section 8(b) precludes culpability for war crimes:
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Approved by the U.S. Government
Authorized by “advice of counsel”
Occurring between 9/11/01 – 1/30/05
This provision:
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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 Accountability
Using Immunities and Defenses to
Impede Accountability
Misuse of the State Secrets Doctrine
Intended Purpose:
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Evidentiary privilege
Withhold specific evidence to protect national security
Misuse:
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Invoked to have cases dismissed entirely
This practice:
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Prevents victims from knowing truth about abuses
Denies justice to detainees and other victims
Shields perpetrators from accountability
Obstacles to Accountability
Using Immunities and Defenses to
Impede Accountability
“Qualified Immunity” Defense
Intended Purpose:
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Protect officials from frivolous lawsuits
Misuse:
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Invoked to preclude liability for torture and other abuse
Claimed detainees’ right to freedom from torture “not
clearly established”
This practice:
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Prevents victims from knowing truth about abuses
Denies victims right to justice
Precludes possibility of obtaining reparation
Obstacles to Accountability
Using Statutes of Limitation to
Preclude Prosecutions
Existing statutes of limitation:
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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:
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Violate international law
Impede victims’ rights to justice and reparation
Contribute to an environment of impunity
The United States Government must:
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Initiate criminal investigations into abuses
Amend U.S. law to toll or repeal statutes of limitations
Obstacles to Accountability
Bilateral Immunity Agreements (BIAs)
BIA Policy:
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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:
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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:
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Revoke BIAs
Sign and ratify Rome Statute
Proposed Accountability Measures
Various accountability measures might be
used to address these abuses:
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Criminal investigations and prosecutions
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Commissions of inquiry
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FOIA requests and litigation
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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:
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Restore victims’ rights to truth and justice
Afford victims and society right to know extent
Government’s involvement
Deter future abuses
Reaffirm commitment to human rights and rule of law
The United States Government must:
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Effectively investigate human rights violations
Identify perpetrators
Prosecute and punish those responsible
of
Proposed Accountability Measures
Commissions of inquiry
A commission of inquiry would:
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Afford victims and society the facts about abuse
Identify those responsible
A commission of inquiry would not:
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Hold perpetrators accountable
Grant reparations to victims
Satisfy the United States’ legal obligations, if immunity is
granted
The United States must:
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Effectively investigate human rights abuses
Identify those responsible
Proposed Accountability Measures
FOIA requests and litigation
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Used to secure information about violations of law
committed by United States Government officials
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But only provide a partial view, and cannot serve as
primary means of obtaining truth about abuses
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The United
investigate:
States
Government
itself
must
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abuses committed
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extent of the Government’s role in those abuses
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rationale for the decisions to implement these policies
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ramifications of these events
Proposed Accountability Measures
Reparations
The following forms of reparation may be required:
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Restitution
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Compensation for:
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Physical or mental harm
Lost opportunities and lost earnings
Medical and legal fees
Rehabilitation, including:
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Restore victims to place of residence or another country
where they will be safe from harm
Medical or psychological care
Social or legal services
Satisfaction
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Reveal truth about abuses
Issue public apology
Conclusion
Evidence of human rights violations
committed
by
United
States
Government officials is incontrovertible.
To meet its legal obligations, United
States Government must:
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promptly and effectively investigate abuses
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ensure those
account
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provide adequate reparation to victims of
abuse
responsible
are
held
to
Request
Issue 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