Category Archives: Human Rights

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May 3, 2013

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Human Rights, Victims Rights

Victims Rights in Sexual Assault cases

Written by: Regina Paulose

The Verma Report

In the last couple of months, women’s and children’s rights have catapulted to the forefront of the international community due to tragic situations involving sexual assault. The most notable of these was the New Delhi gang rape in December 2012. This is not the first time these situations have happened. Why these situations have garnered this much media attention as opposed to similar situations that occur daily is an anomaly. However, the extensive spotlight has created a space for needed global discourse and critique of the current framework regarding victims’ rights.

One would be amiss to think that this problem is unique to India. In fact, in the research that was surveyed for this brief article, a vast amount of information indicates this is nothing short of a global endemic.

The December 2012 gang rape in New Delhi has forever changed the way women and children’s rights will be discussed in India. The tragic and grotesque situation, mobilized the people of India to protest inadequate laws that allow women and children to fall prey to those with an unforgivable appetite for sexual propensities. As a result the Government formed, under the leadership of Justice Verma,[1] the Committee on the Amendment to Criminal Law in India, which issued a report (Verma Report) in response to the huge public outcry. The Commission took responses from over 80 groups in addition to surveying laws from different countries.  The Commission’s conclusion after 200 + pages was simple.

Breathe life into your hollow laws and hollow words.

Although the report contains recommendations that the Indian legislature should adopt to address problems relating to sexual assault, it contains, what this author believes, to be a global framework that every country should consider in reevaluating and formulating laws that seek to protect victims from sexual assault.

The New Framework and its Four Pillars

Brutality/violence against women and children is a “deficiency [that] has to be overcome by leaders in society aided by systemic changes in education and social behavior.”[2] The report outlines what is broken down into four pillars which make up a new framework.  These pillars are not discussed in any particular order of preference.  Each pillar represents an area that will need to be improved alongside the other pillars[3] to allow shifts such as the one envisioned in the Verma Report.  Additionally, these four pillars are not discussed in minute detail, but serve as a launching point for more discussion which needs to involve holistic approaches.

Improvement of judiciary and government mindset

The judiciary, the guardian of the rule of law, should be continually up to date on the intricacies relating to sexual assault topics. The judiciary needs to change outdated conceptions that it may have of sexual assault victims.  These cases are victim dependent (99% of the time) and poor actions on the part of judges or a hostile courtroom can prevent a victim from participating in proceedings. In 2011, in Manitoba Canada, a Judge was scrutinized for his “archaic” statements when he analyzed the night of a sexual assault and said that “sex was in the air” and that the defendant was a “clumsy Don Juan.”[4]  In places such as the United States and Canada, judicial remarks such as these can be reviewed by an independent council or a bar association, which could result in punitive measures. However, punitive measures do not necessarily lead to a change in attitudes when these cases are presented.

It is important to address these attitudes that start from the judiciary and work its way through lawyers and juries. “Social attitudes are a thread running through the criminal justice system in response to rape.”[5] “Rape myths” as it is sometimes referred to “can directly or indirectly serve to excuse perpetrators and blame victims, and psychologists have found that they may also increase the likelihood that individuals will commit rape.”[6] There are also those who are of the opinion that the “rape myth” is “overstated” and challenge it on three grounds (1) some attitudes are based on opinions and facts (2) not all myths are about rape but rather how people negotiate sex and (3) there is little evidence that rape myths are widespread.[7]  Regardless of one’s position on the prevalence of rape myths, it still stands to reason that those who have the most power in interpreting laws and protecting victims should be knowledgeable in this area. These judicial players have an obligation not to perpetuate attitudes that continue to harm women and children. A victim should not make a decision to report or proceed with a case based on whether or not she will be believed by the attorneys, judge, or the jury.

Government attitudes towards sexual violence also need to change. It is evident that many government actors need to be educated on issues such as rape and women’s rights, in addition to utilizing their power to enforce laws. It would also be of use for legislatures and government players to review laws that have large gaps that allow women and children to fall prey to predatory acts.

Education/Retraining and Accountability of Law Enforcement

Law enforcement people are considered “arbiters of honor.”[8] This pillar has three components. The first component involves proper education and training on the root causes of sexual violence. Law enforcement needs to properly respond and not be apathetic, which can create a large change in how these situations are addressed.  This re-education and training unfortunately can present an uphill challenge as it also requires replacing existing beliefs in some communities. For example, law enforcement should be vigilant against “honor crimes” which are prevalent in different parts of the world. “Honor killings” or “honor based violence” are deeply rooted (origins stem from the Bible) and it is estimated that 5,000 honor based killings happen a year internationally.[9] Another example is eliminating the concept of shame. In sexual assault situations, the question should be about “bodily integrity” which translates into “integrity of the community.”[10]  This kind of shift in the mentality of law enforcement would allow more victims to come forward.

The second component involves the actual enforcement of the laws. In Kenya, where a large amount of sexual assault laws protecting women exist, women’s groups have challenged the enforcement of these laws based on the fact that police have done little to effect the law thus resulting in sex discrimination. A claim was submitted to the Kenya High Court as of October 2012 on this basis.[11] In Honduras it has been reported that there exists an “”apparent inability” of the government to effectively enforce legislation on the matter because of the lack of proper training for law enforcement personnel.”[12] In China, “when a victim has reported a sexual assault to police, seeking justice, hoping for the violator to be punished by the law, if the violator is powerful or backed by someone important, the victim will be pressured to solve the problem quietly, mostly to save face for the violator and related parties.”[13]

The third component has to do with creating laws or enforcing laws which hold law enforcement (including military) accountable. There are unfortunately many situations around the world in which law enforcement are perpetrators of this crime.  In Mexico, two police officers allegedly raped an Italian tourist while she was leaving a club at night. The officers also demanded money from the victims.[14] This was on the heels of another occurrence in Mexico where a similar situation occurred. It is also important to note that rape occurs with high frequency in conflict situations. As examined in different reports:

“mass rape in war has been documented in various countries, including Cambodia, Liberia, Peru, Bosnia, Sierra Leone, Rwanda, the Democratic Republic of Congo, Somalia and Uganda. A European Community fact-finding team estimated that more than 20,000 Muslim women were raped during the war in Bosnia. At least 250,000, perhaps as many as 500,000 women were systematically raped during the 1994 genocide in Rwanda, according to reports from the World Bank and UNIFEM. Most recently in Darfur, Western Sudan, displaced people have described a pattern of systematic and unlawful attacks against civilians by a government-sponsored Arab militia and the Sudanese military forces.”[15]

Prosecution of such crimes needs to occur and immunity should never be granted to personnel engaging in torture. For example, in Burma, no law exists which mandates the investigation of crimes by military troops because they are granted full immunity and are outside the jurisdiction of civilian courts. Minority groups have alleged that acts of sexual violence have occurred by the military, yet due to immunity, they walk free.[16]

Enforcement of State Obligations under International/Domestic Law

States have international obligations under the UN Declaration of Human Rights, the ICCPR, the ICESCR, and CEDAW to protect women and children. However, the world is not unified on various conventions and their provisions despite all the rhetoric. For example with the CEDAW, many countries had expressed that they would not include certain provisions (specifically contested are Article 2- equality of women and Article 16 – legal, cultural, and political rights for women).[17]  It should be noted that scholars do suggest based on various studies that treaty ratification does not necessarily equate to a better record of human rights performance.[18] In the bigger picture however, having such legislation implemented or modeled on a domestic level is important. In March 2013, US President Obama signed in to law the Violence Against Women’s Reauthorization Act (VAWA) which affords various protections for women.[19] One of the landmark items was the passage of provisions which protect Native American women from gaps in the law, which prior to VAWA did not allow them to prosecute perpetrators on reservations. This should be hailed as a major step forward in light of the fact that “federal prosecutors decline[d] to prosecute 67 percent of sexual abuse cases” on reservations and that “more than 80 percent of sex crimes on reservations are committed by non-Indian men, who [were] immune from prosecution by tribal courts.”[20]

Obligations of the State to provide for women and children

There is no question that the “state has a fundamental duty to protect women from gross/horrible violations of human rights.”[21] Women and children need to be protected from malnutrition, should be given access to means of economic empowerment, and should be safe from trafficking and domestic violence. These tools allow women to have a chance at being equals in society.  In India, the rhetoric of equality for women dates back to 1939.[22] Many probably assume that lesser developed countries are in desperate need of women’s rights laws. However, the 2012 World Economic Forum Global Gender Gap Report indicates that countries such as the Philippines, outranked the USA for protecting women’s rights.[23] In another survey conducted by TrustLaw, which ranked the G20 nations (but only ranked 19 of the 20), the survey found that Canada was more “egalitarian” than its counterparts and ranked China at #14 and India at #19.[24]  These indicators only serve to emphasize that “gender equality furthers the cause of child survival and development for all of society, so the importance of women’s rights and gender equality should not be underestimated.”[25]

Next Steps

Although the Verma report (a must read) is more detailed and more researched than this short article, there comes a time when law and rhetoric should create a perfect storm for action on sexual violence against women and children. It should be an embarrassment to any civilized society that sexual predators and rapists roam free without punishment. As studies continue to indicate, society will pay an ultimate price if women are not considered equal and action is not taken against this kind of violence. From a brief glance at each of these pillars, it is obvious that every single country in the world has a lot of work to do.

[1] Justice Verma passed away on April 22. Justice Verma was well known for his integrity and judicial activism. Read more on his death here: http://www.bbc.co.uk/news/world-asia-india-22260180.  The full report can be found here:  http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf

[2] Verma Report, p. 22 para 5

[3] I do not address every single problem that is associated with sexual assault in my post. This article in its limited capacity only seeks to address the large points made in the Verma Report to allow the reader an opportunity to continue the discussion.

[4] CTV News, Judicial Council reviews Sexual Assault Remarks, February 25, 2011, available at: http://www.ctvnews.ca/judicial-council-reviews-judge-s-sex-assault-remark-1.611990

[5] Charnelle van der Bijl and Philip N. S. Rumney, Attitudes, Rape and Law Reform in South Africa, The Journal of Criminal Law, 414-429, (2009).

[6] Dr. Brienes, “She asked for it: the Impact of Rape Myths” Psychology Today,  November 5, 2012, available at: http://www.psychologytoday.com/blog/in-love-and-war/201211/she-asked-it-the-impact-rape-myths

[7] Helene Reece, “Too much blame placed on popular prejudices against rape victims for low conviction rates”  LSE March 25, 2013, available at: http://www2.lse.ac.uk/newsAndMedia/news/archives/2013/03/Too-much-blame-placed-on-popular-prejudices-against-rape-victims-for-low-conviction-rates.aspx

[8] Verma Report, p. 93 para 37

[9] See Honour Based Violence Awareness Network: http://hbv-awareness.com/

[10] Verma Report, p. 93 para 38

[11] Liz Ford, How Kenyan Girls are using the law to fight back against rape, The guardian, December 4, 2012, available at: http://www.guardian.co.uk/global-development/poverty-matters/2012/dec/04/kenyan-girls-law-fight-rape

[12] Immigration and Refugee Board of Canada, Honduras: Update to HND32564.E of 15 October 1999 on violence against women, including social, government and police attitudes; whether state protection and redress available to victims of sexual violence is effective and sufficient; the general attitudes of such victims regarding the responsiveness of the state and the corresponding reporting rates; women’s organizations that assist victims of sexual violence, 18 October 2002, HND40207.E, available at: http://www.refworld.org/docid/3f7d4da111.html [accessed 3 May 2013]

[13] Zen Jingyan, “Sexual Assault victims suffer twice in China” Huff Post World, November 3, 2011, available at: http://www.huffingtonpost.com/zeng-jinyan/sexual-assault-china_b_1073693.html

[14] Rafael Romo, “Police Officers in Mexico suspected in alleged rape” CNN February 22, 2013, available at: http://edition.cnn.com/2013/02/21/world/americas/mexico-rape-police

[15] IRIN, “Our bodies – their battle ground: gender based violence in conflict zones” September 1, 2004, available at: http://www.irinnews.org/InDepthMain.aspx?InDepthId=20&ReportId=62817

[16] The International Campaign to Stop Rape and Gender Violence in Conflict, Stop Rape in Burma, accessed on April 26, 2013, available at: http://www.stoprapeinconflict.org/burma

[17] Specific objections from each country can be found here: http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm

[18] See Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, LSE Research Online, (2006) available at: http://eprints.lse.ac.uk/612/1/JournalofConflictResolution_49(6).pdf

[19] Jodi Gillette and Charlie Galbrath, “President Signs 2013 VAWA Act – Empowering Tribes to Protect Native Women” The White House blog, March 7, 2013 available at: http://www.whitehouse.gov/blog/2013/03/07/president-signs-2013-vawa-empowering-tribes-protect-native-women

[20] Louise Erdrich, “Rape on the Reservation” International Herald Tribune, February 26, 2013, available at: http://www.nytimes.com/2013/02/27/opinion/native-americans-and-the-violence-against-women-act.html

[21] Verma Report, para 18

[22] Verma Report, Chapter 1, para 25

[23] Emma Clarke, 10 Countries with Very Surprising Womens Rights Rankings, Policymic, available at: http://www.policymic.com/articles/11804/10-countries-with-very-surprising-women-s-rights-rankings

[24] Katrin Bennhold, “The Best Countries to be a Woman – and the Worst” International Herald Tribune, June 13, 2012, available at: http://rendezvous.blogs.nytimes.com/2012/06/13/the-best-countries-to-be-a-woman-and-the-worst/

[25] Anup Shah, “Womens Rights,” Global Issues, March 14, 2010, available at: http://www.globalissues.org/article/166/womens-rights. The author of this article delves into the various areas and the impact that lagging womens rights will have on each. He also focuses on topics such as the “feminization of poverty” which indicate that women suffer the most economically which has a snowball effect on society.  

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May 3, 2013

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Human Rights, International Criminal Court, Jurisdiction, Jurisprudence, Rome Statute

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Extraordinary Rendition and the ICC

Contemporary international practices in fighting crimes and, especially, those related to the exercise of the jurisdiction over a suspected criminal envisage a possibility of implementation of a set of mechanisms used for his search and subsequent committal for a trial which inter alia may include extradition and other interstate procedures.[1] However, these practices show that extradition as a form of international cooperation is referred to by the states more frequently than the others, whereas the procedure of surrender is exercised solely on the basis of the mutual will of the sovereign states concerned subject to the application of the requesting state, consent of the surrendering state and the latter’s compliance with the principle aut dedere aut judicare in cases of committal of serious international crimes by the suspect.[2]

On the other hand, even when the aforementioned application has been made by the requesting state, the surrendering states are sometimes unable to detect the location of the suspect. In such cases states may search for the suspects proprio motu and resort to transnational abduction from the territory of another state. Moreover, these actions are often undertaken notwithstanding the existence of an extradition treaty which provides for the use of regular legal procedures ensuring prosecution or execution of punishment.[3]

In this respect, while such a resort to irregular means of surrender of the fugitive has almost unilaterally been defined by scholars as ‘extraordinary rendition’,[4] there is still a continuous debate on whether a court should exercise its jurisdiction over such a person and what the necessary prerequisites and possible consequences are.[5] This issue has somewhat been pleaded in few domestic and international proceedings across the globe and is enshrined in the famous doctrine male captus bene detentus,[6] which provides for the possibility of the expansion of extraterritorial jurisdiction of the state, abduction of the fugitive and the exercise of the jurisdiction by the court notwithstanding the circumstances of a person’s arrest.

Nonetheless, given the growing number of such instances, yet, little and controversial reflection of the matter in national and international law this dilemma has become even more worrying with the establishment of the International Criminal Court (hereinafter ICC) in 1998, whose Statute does not contain any provisions in respect to the issue at stake.[7]

One should bear in mind that rendition as means of eliminating secure zones for criminals and, in particular, terrorists, should not at the same time undermine international legal order which is based on the principles of state sovereignty and non-interference which prohibit any illegal intrusion in the surrender of the suspect as well as the exercise of forcible actions in the territory of another state without latter’s knowledge and consent. Moreover, when there is a serious violation of the rights of the suspect regardless of whether it occurs due to the actions of states, individuals or international institutions, there arises a legal impediment which may trigger the unwillingness of the judicial body to exercise its jurisdiction for the sake of integrity and stability of international legal order and human rights as its integral part.

Unfortunately, the Rome Statute of the ICC does not contain any provision in respect to extraordinary rendition as such. Arguably, the only applicable provisions concern the legality of arrest of the accused and certain human rights. Article 59(1), for example, imposes an obligation on State Parties to apprehend suspects upon the request from the Court.[8] This, however, is to be done “in accordance with the law of that state,” while according to Article 59(2) the arresting state must also have a “competent judicial authority” determining, “in accordance with the law of that State, that:…(b) the person has been arrested in accordance with the proper process; and (c) the person’s rights have been respected.”[9]

Some scholars argue that the aforementioned Article does not entail the right of the accused to have the lawfulness of his arrest or detention reviewed by a domestic court, nonetheless, bearing in mind that it may follow from human rights conventions to which the requested State is a party.[10] As regards the human rights of the accused, Article 55(1) of the Rome Statute envisages that no one shall be subjected to arbitrary arrest or detention.[11] Article 21(3), in turn, provides that the law shall be interpreted and applied by the Court in a way consistent with internationally recognized human rights.

However, the Rome Statute is silent as to the right of the requested state to decline the surrender on the grounds of an illegal arrest. This, in turn, leads to believe that the obligation of the requested state to surrender the suspect to the ICC is supreme over any national law that might allow the domestic court to decline such a surrender when the suspect has been subjected to illegal arrest or detention. Therefore, it is up to the ICC as to consider the violation of human rights of the suspect, and, as provided by Article 85(1) to arbiter compensation to anyone who has been the victim of an unlawful arrest or detention.[12] However, the Rome Statute and the Rules of Procedure and Evidence do not provide a definite answer to the issue of whether and when the Court should exercise its jurisdiction in cases of extraordinary rendition.

The uncertainty in this respect was about to change on 14 December 2006, when the Appeals Chamber had to reconsider the application lodged by Thomas Lubanga Dyilo.[13] Mr. Dyilo challenged the Court’s ability to exercise jurisdiction over him under Article 19(2) of the Rome Statute before the Pre-Trial chamber. In his application Mr. Dyilo alleged that he had been subjected to mistreatment when he was detained in the Democratic Republic of the Congo prior to his surrender to the ICC which the Prosecutor had been complicit in. He alleged that it constituted the abuse of process and applied for the dismissal of the case.

Referring to Nikolić and Barayagwiza the Pre-Trial Chamber stated that it could potentially dismiss the case as a remedy for abuse of process and on the protection of the fundamental rights of the accused in Article 21(3). However, the Chamber had to decline the application due to the lack of evidence in support of complicity and mistreatment. This has been reconsidered by the Appeals Chamber whose findings varied drastically. The Chamber stated, that the issue was not that of jurisdiction, but rather “a procedural step not envisaged by the Rules of Procedure and Evidence or the Regulations of the Court invoking a power possessed by the Court to remedy breaches of the process in the interests of justice.”[14] Further on, the Chamber reviewed the doctrine of abuse of process and stated that since the concept is not really known to civilian systems, the doctrine “is not generally recognized as an indispensable power of a court of law, an inseverable attribute of judicial power,” and therefore was not among any inherent powers the ICC had.[15] Nonetheless, the Chamber stated that the human rights standards imposed by Article 21(3) imply the Court’s power to stay proceedings if the treatment of the accused interferes with the right to a fair trial.[16] In particular the Court confirmed that there must be a human rights-based remedy available to the accused under Article 21(3) of the Rome Statute, however, declining to characterize it as a “jurisdictional” power.

The aforementioned approach seems balanced and justified. Nevertheless, if the ICC decides to change it, there will certainly be cases where prosecuting universally condemned offences will by itself create threats to international peace and security. Notably, the ICC operates in a highly-charged political atmosphere and even a minor disregard of illegality might provoke a political conflict, which will worsen the situation and damage the legitimacy and credibility of the ICC.[17] Therefore, it is highly advisable that these practices have no future before the Court.

Written by Jan Guardian

[1]      See Aparna Sridhar, The International Criminal Tribunal for the Former Yugoslavia’s Response to the Problem of Transnational Abduction, 42 Stan. J. Int’l L. 343 (2006) [hereinafter Sridhar, ICTY Response], at 343-344.

[2]      Ozlem Ulgen, The ICTY and Irregular Rendition of Suspects, 2 Law & Prac. Int’l Cts. & Tribunals 441 (2003), at 441.

[3]      See e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[4]      Laura Barnett, Extraordinary Rendition: International Law and the Prohibition of Torture, (rev. July 17, 2008) [online][accessed 1 May 2013].

[5]      Frederick Alexander Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Yoram Dinstein ed., 1988), at 414.

[6]      Douglas Kash, Abducting Terrorists Under PDD-39: Much Ado About Nothing New, 13 Am. U. Int’l L. Rev. 139 (1997) [hereinafter Kash, Abducting Terrorists], at 141.

[7]      UN General Assembly, Rome Statute of the International Criminal Court (last amended January 2002), 17 July 1998, A/CONF. 183/9 [hereinafter Rome Statute][online][accessed 1 May 2013].

[8]       Ibid., Article 59(1).

[9]       Ibid., Article 59(2).

[10]        B. Swart, Arrest Proceedings in the Custodial State, in the Rome Statute of the International Criminal Court, Vol. II (A. Cassese, P. Gaeta and J.R.W.D. Jones, eds , 2002), at 1252.

[11]     Rome Statute, supra note 7, Article 55(1).

[12]     S. Zappala, Compensation to an Arrested or Convicted Person, in A. Cassesse, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford-New York: Oxford University Press, 2002) 1577, at 1580.

[13]     Situation in the Democratic Republic of the Congo in the Case of The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2) of the Statute of 3 October 2006), Case No. ICC-01/04-01/06 (OA4), 14 December 2006 [online][accessed 1 May 2013].

[14]     Ibid., para. 24.

[15]     Ibid., para. 35.

[16]     Ibid., para. 37.

[17]     John Rosenthal, A Lawless Global Court: How the ICC Undermines the UN System, Policy Review, February – March 2004, at 29.

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April 6, 2013

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Human Rights

International Wrongful Convictions: The Unwritten Rules

Written by: Janis C. Puracal, an appellate attorney at the law firm of Bullivant Houser Bailey in Portland, Oregon.

 

 

At this time last year, my brother was being slowly starved to death in a Nicaraguan prison.  I had been fighting for Jason as part of his defense team for nearly a year and a half with little-to-no movement in the Nicaraguan court system.

 

Jason and I, along with our younger sister, Jaime, grew up in Tacoma, Washington.  Jason moved to Nicaragua to serve in the Peace Corps in 2002 after graduating from the University of Washington.  He decided to stay after his service and was working as a real estate broker for the local RE/MAX franchise in San Juan del Sur.

 

On November 11, 2010, Nicaraguan national police stormed Jason’s beachfront office wearing masks and carrying AK rifles.  They threw Jason in the back of a van with ten others and took the computers, phones, and files from the office.  At the same time, the police raided his home where our 65-year-old mother had been visiting from the US and was staying with Jason’s three-year-old son.  The police held my mother and nephew at gunpoint for six hours and refused to tell them what they were looking for.

 

After being held for three days without a phone call to his family or an attorney, Jason, along with ten Nicaraguans, was finally charged with international drug trafficking, money laundering, and organized crime.  But there was no evidence of any crime at all.  Indeed, the police and the prosecution admitted at trial that there were no drugs and no illegal transfers of money.  Instead, the prosecution argued that Jason, a real estate broker, had large sums of money going into and out of his corporate account, and those large sums must be evidence of crime.

 

It took 22 months and an international campaign involving thousands of supporters to finally bring Jason home.  As a civil lawyer trained in commercial litigation, I hit a steep learning curve as part of Jason’s defense team.  Through the 22 month crash course in international wrongful convictions, I quickly learned that there are many unwritten rules to practicing in this area.  Here are just a few:

 

  • Recognize that the courtroom may not be the real battleground.

 

The case against Jason lacked any merit at all; yet, he continued to languish in a maximum security prison without access to proper food, water, or medical care.[1]  During the first week of Jason’s imprisonment, he was moved from prison to prison as the police attempted to hide him from his attorney and family.  Jason spent three days at El Chipote, the infamous underground torture facility used during the Somoza regime.  Jason was thrown into a dark cell with only his boxer shorts and forced to live amongst the cockroaches, ants, and screaming from terrified prisoners in other cells.[2]  Jason was then transferred to La Modelo, the maximum security prison just outside Managua where he spent the remainder of his wrongful detention.  He shared a 12’ x 15’ cell with 8-12 other men and slept on concrete for much of the time.  The daily fight for food and water caused Jason to lose over 35 pounds and suffer from digestive disorders and physical effects of malnutrition.  Jason’s gums began to bleed; his eyes became sunken in; and his skin was covered in rashes and bites from ants, ticks, and mosquitoes.

 

We were fighting the clock, terrified that Jason would die in prison before we could get him out.  But it took us nine months to even get the case to trial.  Despite a three month time limit to bring a criminal case to trial under Nicaraguan law, the prosecution repeatedly requested delays without citing a reason, and the judge granted them with no notice to the defense.  Our entire defense team would appear for the first day of trial only to learn that the trial had been delayed.

 

Throughout the nine months, the defense asked for, and was denied, access to the evidence that had been seized from Jason’s office.  At trial—closed to family and media—the prosecution argued that the documents from the office proved money laundering, but refused to put any of the allegedly inculpatory evidence into the record.  Not a single bank record was offered to prove money laundering and, instead, the prosecution simply offered its “financial expert” (a police officer) to testify that the RE/MAX account held large sums of money.  While the prosecution was permitted to try its case by relying on hearsay from police officers citing anonymous informants, the defense was denied the right to fully examine those officers or put on its own key witnesses to rebut the testimony.  All the while, Jason was refused confidential communications with his lawyers, making preparation for trial a logistical nightmare.

 

Despite the roadblocks facing us, the evidence during the trial came out in Jason’s favor.  The police admitted that they never found a single gram of drugs—not just on Jason, but on any of the eleven defendants in the case.  The police also admitted that no money had ever changed hands between Jason and any of the other defendants.  The prosecution put 295 titles to properties into evidence that were seized from Jason’s office and claimed the titles were evidence of money laundering.  Six of the titles, in fact, belonged to the Nicaraguan military.  The police were forced to admit at trial that Jason did not own any of the properties, and the police had never even questioned the buyers or sellers of the properties.

 

We thought Jason would be coming home after the trial.  Instead, the judge took a 15 minute recess after closing arguments and then convicted all 11 defendants.  He sentenced Jason to 22 years in prison.

 

It was clear that we never had a shot of fighting this case on the merits.  We had to find the pressure points outside the courtroom and win the war elsewhere.

 

  • Understand that ratification of a treaty doesn’t necessarily mean acceptance.

 

Nicaragua ratified the International Covenant on Civil and Political Rights (“ICCPR”) on March 12, 1980.[3]  It was one of 48 countries that voted in favor of the Universal Declaration of Human Rights,[4] and was a signatory to the American Convention on Human Rights (“ACHR”).[5]  Both the ICCPR and the ACHR provide for the right to trial before a competent, independent, and impartial tribunal established by law.[6]

Nicaragua’s signature on these fundamental treaties respecting human rights should have been our saving grace.  Indeed, Nicaragua’s own law requires that, to be a district court judge under Nicaraguan law, one must (1) be an attorney, (2) have practiced for at least three years, and (3) have served as a local judge for at least two years.[7]

Yet, we discovered just one month before Jason’s trial that the man who was appointed to preside over the trial was neither a judge nor a lawyer.[8]  Rather, 27-year-old Kriguer Alberto Artola Narvaez was not a licensed attorney, never practiced law, never served as a local judge, and had never even seen a trial.

The story broke in the Nicaraguan news before trial and caused an uproar.  Still, Artola Narvaez was permitted to preside over the trial and issue the conviction and 22-year sentence that would ultimately end up costing my family everything we had worked for to fight against.  Artola Narvaez fled the country shortly after we filed a petition in the United Nations pleading for intervention.[9]

The unfairness of it all was not lost on any of us.  But we were able to use the injustice to energize an international outcry against the Nicaraguan system.  The system had left us with no redress except the one of public opinion and that was what, in the end, was the most powerful.

 

  • Look for leverage in unconventional places.

 

The crimes with which Jason was charged are traditionally governed by domestic law, but domestic law had failed us.  The judicial process in Nicaragua was being selectively enforced and, in Jason’s case, its laws were arbitrarily used as leverage against the public.  Without due process, a country has the potential to become, effectively, a lawless society.

 

So the question became:  where do you turn when you cannot rely on a process guaranteed under domestic criminal law?

 

The Organization of American States (“OAS”), established to enforce and interpret the ACHR, is one option.  The OAS accepts and rules on cases of human rights violations brought by individuals or groups.  But the path to a binding decision is long and slow.  The court has a backlog that could take years to resolve.  With Jason slowly dying in prison, we didn’t have time to wait.

 

We had to look for pressure points elsewhere.  One place was in the media.  The media proved to be an invaluable force, but we had to do our part.  We had to deliver content that was engaging, well-packaged, and, most of all, reliable.

 

For example, because we could not get to a decision in the OAS in time, we looked to the United Nations Working Group on Arbitrary Detention (“WGAD”).  The WGAD investigates cases by looking at only the procedural violations.[10]  The WGAD, unlike the OAS, does not address the merits of the case (i.e., the question of innocence or guilt) and operates under a vastly different procedure as part of the United Nations.[11]  The WGAD’s decisions are not binding; they are merely recommendations to a state.  The timeline for a recommendation, however, is just three to six months.

 

We filed a petition with the WGAD on January 18, 2012, and it was the first time the Government of Nicaragua had been called before the WGAD.  The filing made headlines in Nicaragua.[12]

 

The WGAD’s decision was released in May 2012, and the Group agreed that “there were major irregularities” in Jason’s trial, resulting in an arbitrary detention.[13]  The WGAD recommended the Government of Nicaragua “order the immediate release of Mr. Puracal.”  Again, the media came through, splashing the papers with the headline:  “United Nations Calls on Nicaragua to Immediately Release Wrongly Imprisoned U.S. Citizen Jason Puracal.”  Jason was released four months later.

 

*          *          *

 

We will likely never know what ultimately forced Jason’s release and return home in September of 2012.  I am, however, certain that it took a global effort from thousands of people around the world to save his life.  Many others are not so lucky.

 

Although Jason was deported from Nicaragua, the prosecution has appealed the case to the Nicaraguan Supreme Court, forcing us to turn to the OAS for help.  The petition to the OAS will seek legal reform to help the many left in Nicaragua who have not been able to navigate the labyrinth.  In the meantime, there is much work to be done around the world.  To all of those who have led, joined, or supported the fight, thank you.

 

[1] Physical abuse and the denial of food, water, and proper medical care constitute serious violations of the standard for the detention of prisoners.  Standard Minimum Rules for the Treatment of Prisoners, para. 20(1) (“Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.”); para. 20(2) (“Drinking water shall be available to every prisoner whenever he needs it.”); para. 22(2) (“Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals.  Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.”).

[2] The unsanitary and infested conditions in which Jason was forced to live were further violations of international standards.  Standard Minimum Rules for the Treatment of Prisoners, para. 10 (“All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”), para. 12 (“The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.”), para. 14 (“All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.”), para. 15 (“Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.”).

[4] Yearbook of the United Nations 1948-1949 at p. 535.

[5] See Signatories and Ratifications available at http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm.

[6] Article 14 of the ICCPR provides that “[i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”  Article 8 of the ACHR confirms the same right:  “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him[.]”

[7] Article 137 of the Judicial Power Organization Act.

[8] See Lésber Quintero, Abnormal Appointment of Judge in Rivas, El Nuevo Diario, July 4, 2011, available at:  http://www.elnuevodiario.com.ni/nacionales/106766-raro-nombramiento-de-juez-rivas; Ramón Villarreal B., Lucía Vargas, and  Eddy López, Deputy Judge Unregistered Attorney, La Prensa, July 4, 2011, available at: http://www.laprensa.com.ni/2011/07/04/politica/65636; Ramón H. Potosme, Ramón Villarreal, and Lucía Vargas, Rivas Judge is Not a Lawyer by Error, La Prensa, July 5, 2011, available at: http://www.laprensa.com.ni/2011/07/05/nacionales/65706.

[9] See Lésber Quintero, Controversial Judge Leaves Rivas, El Nuevo Diario, February 2, 2012, available at:  http://www.elnuevodiario.com.ni/nacionales/240484.

[10] The WGAD was established by resolution 1991/42 of the former Commission on Human Rights.  Resolutions 1997/50, 2000/36, and 2003/31 were adopted by the UN Commission on Human Rights to extend the mandate of the WGAD.  Resolutions 6/4 and 15/18, further extending the mandate of the Working Group, were adopted by the Human Rights Council, which has “assume[d] . . . all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights . . . .”  G.A. Res. 60/251, para. 6 (Mar. 15, 2006).  See also http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx.

[11] See, e.g., Revised Methods of Work of the Working Group, available at:  http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx.

[12] See, e.g., Elizabeth Romero, Denounce the Country by “Arbitrary Detention,” La Prensa, January 24, 2012, available at:  http://www.laprensa.com.ni/2012/01/24/ambito/88174.

[13] Opinions adopted by the Working Group on Arbitrary Detention at its sixty-third session, 30 April–4 May 2012 – No. 10/2012 (Nicaragua), available at:  http://ap.ohchr.org/documents/dpage_e.aspx?m=117.

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March 14, 2013

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Human Rights, Terrorism, Torture

Accountability for Torture by United States Since 9/11

WRITTEN BY: JAMES ROTH

James Roth is a retired lawyer, now a writer. He was one of the founders and long-time board member of Advocates For Human Rights and The Center For Victims of Torture.  He is currently completing his first novel entitled “Beyond Torture.” He is also active with many groups working on foreign policy and international human rights issues.

Summary:

Before 9/11 it was widely accepted that torture was illegal under international and United States domestic law. The United States had signed and ratified the Convention Against Torture and had enacted the anti-torture statute of 1994, 18 U.S.C. Sections 2340-2340A , which criminalized acts of torture by United State nationals or non-nationals committed outside the United States, as well as the Torture Victim Protection Act of 1991.

Shortly after 9/11 Bush administration officials sought and received authorization through various legal memos and reports by the Department of Justice and Department of Defense to create detention facilities outside the United States and to use harsher interrogation techniques than those previously approved. The result was the use of “Enhanced Interrogation Techniques” as well as increased renditions of detainees to other countries for interrogation.

Many abuses which have now been well-documented followed including long-term detentions without access to legal counsel or legal oversight, widespread use of interrogation techniques broadly acknowledged as being torture and cruel and unusual punishment, including deaths of over 100 detainees under questionable circumstances.

Upon taking office in January 2009, President Obama issued Executive Order 13491—Ensuring Lawful Interrogations. Yet, despite well-documented violations of international and domestic laws no clear standards have emerged and there has been no accountability except for a handful of lower level military personnel.

This article outlines a number of areas, both legislative and domestic, that it urges our Congressional Representatives and Senators to pursue.

Specifically, this article urges action to confront the United States Congress to:

  1. Release to the public the December 2012 Senate Intelligence Committee Report with as few redactions as possible so that the public can understand what brought about the shift in U.S. policy toward torture and cruel treatment and diminished America’s longstanding consensus against torture and cruel treatment.
  2. Request that President Obama release in some form the report(s) by the Special Interagency Task Force on Interrogation and Transfer Policies established under Executive Order 13491.
  3. Issue an apology to Canadian citizen Mahar Arar, who was mistakenly retained and rendered to Syria where he was tortured, and to Khalid El-Masri, a Lebanese-Canadian who was kidnapped by the CIA in Macedonia where he was tortured and then flown to Afghanistan and tortured some more until the CIA discovered that it had the wrong person and dumped him on an isolated street in Albania.
  4. Ask the Office of the Inspector General for the CIA to supplement the 2004 Report in light of recently obtained information contained in a Human Rights Watch Report of alleged waterboarding and other abuses of detainees in Libya.
  5. Ask Attorney General Holder to investigate the alleged abuses in Libya.
  6. Take appropriate action to encourage local communities to accept detainees from Guantanamo who have been exonerated.
  7. Assure that appropriate oversight is established and maintained so that torture and cruel treatment does not occur in the future.

Background

On September 14, 2001 President Bush issued the “Declaration of National Emergency by reason of Certain Terrorist Attacks.”[1] On September 17, 2001 President Bush issued a 12-page directive (known as a “memorandum of notifications) to the Director of the CIA and members of the National Security Council authorizing the CIA to capture suspected terrorists and members of Al-Qaeda and to create detention facilities outside the United States to hold and interrogate them.[2]  The International Committee of the Red Cross was refused access to detainees held in the new CIA program until September 2006.[3] On November 13, 2001 President Bush authorized the detention of alleged terrorists and subsequent trial by military commission, which he ordered would not be subject to the principles of law and rules of evidence applicable to U.S. federal courts.[4]

On July 11, 2002, the first detainees arrived in Guantanamo Bay, Cuba. On January 18, 2002 President Bush declared that the Third Geneva Conventions did not apply to the conflict with Al Qaeda or the Taliban and that they would not receive the protections afforded to prisoners of war.[5] On February 7, 2002 President Bush issued a memorandum to that effect.[6] In so doing, the President rejected the requests by Secretary of State Colin Powell to reconsider and reverse his decisions,[7] as well as the advice of William H. Taft, IV, Legal Adviser to the State Department, that these decisions were inconsistent with the plain language of the Geneva Conventions and contravened the unvaried interpretation and practice in the fifty years since the United States became a party of the Conventions.[8]

In March 2002, the first “high value detainee”, Abu Zubaydah, was detained and interrogated by the CIA.[9]  The CIA interrogation program sanctioned by President Bush included interrogation techniques adapted from the Survival Evasion Resistance Escape (“SERE”) training program in which U.S. military members were exposed to and taught to resist interrogation techniques used by countries that did not adhere to the Geneva Conventions.[10] As reported in the later CIA Inspector General Report, the U.S. now employed these techniques itself, including waterboarding, confining detainees in a dark box with insects, up to 11 days of sleep deprivation, facial holds and slaps, “walling” (pushing a detainee against a wall) and use of stress positions.[11]

On November 27, 2002 William J. Haynes, General Counsel for the Department of Defense, provided to Donald Rumsfeld an “Action Memo regarding Counter-Resistance Techniques seeking approval of three categories of counter-resistance techniques to aid in the interrogation of detainees at Guantanamo Bay.” Rumsfeld initialed his approval on December 2, 2002 to the first two categories and one of the techniques from the third category (“mild non-injurious physical contact”). This signaled approval of the SERE enhanced interrogation techniques by the military in addition to the CIA. This is one example of the migration of lists and interrogation techniques beyond those approved by the Army Field Manual. U.S. Army General Geoffrey D. Miller was given command of Joint Task Force Guantánamo in November 2002. He implemented the new harsh techniques there. In August 2003 Miller was sent to Iraq by the Department of Defense to help get more information out of Iraqi prisoners. In September Miller submitted a report recommending “GTMO-ising” interrogation techniques–combining the detention and interrogation units at Abu Ghraib into the Theater Joint Interrogation and Detention Center. Miller recommended that prison guards be used to “soften up” prisoners for interrogations.

In September 2003 Lieut. General Ricardo S Sanchez sent a secret cable to US Central Command outlining more aggressive interrogation methods that he planned to authorize immediately, including several that were later revealed when the Abu Ghraib scandal broke.

All of the above facts illustrate how the US military’s ad hoc decision-making created confusion and allowed the harsh methods to infiltrate from Afghanistan to Guantánamo and Iraq. A clear line exists from the initial decision that the Geneva Conventions did not apply to Al Qaeda and Taliban detainees.

As described by the ICRC after they were finally provided with access to detainees, the CIA detention program “included transfers of detainees to multiple locations, maintenance in continuous solitary confinement, incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.”[12] The ICRC Report further found: “The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries actually increased the detainees’ feelings of futility and helplessness, making them more vulnerable to the methods of ill-treatment… these transfers increased the vulnerability… to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating…”[13]

The United Nations Joint Study on secret detentions found that the CIA had taken detainees who were held in Afghanistan, Thailand, Poland, Romania and other locations. [14]The UN Joint Study further found the CIA “had taken 94 detainees into custody and had employed enhanced interrogation techniques to varying degrees in the interrogation of 28 of those detainees.”[15]

It has been documented that over 100 detainees died while in US custody, many under suspicious circumstances. [16]

The interrogation techniques used on detainees were euphemistically described as “enhanced interrogation techniques” by the US government, but the United Nations and the International Committee of the Red Cross found that they rose to the level of torture and cruel, inhuman and degrading treatment. [17]

Alberto J. Mora served as General Counsel to the U.S. Navy from 2001 to 2006. Upon learning of the authorization of the use of coercive interrogation techniques by the US he stated:

“To my mind, there’s no practical distinction [between cruelty and torture]. If          cruelty is no longer declared unlawful but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make an exception the whole Constitution crumbles.

Besides, my mother would have killed me if I hadn’t spoken up. No Hungarian after communism, or Cuban after Castro, is not aware that human rights are incompatible with cruelty. The debate here isn’t only how to protect the country. It’s how to protect our values.”

On June 22, 2009 Pres. Barack Obama signed Executive Order 13491–Ensuring Lawful Interrogations. In section 3(b) it provided:

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States government, or detained within a facility owned, operated or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation that is not authorized by Army Field Manual 2 22.3.

In section 4(a) the order provided “ The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.”

The Order also created a special interagency task force on interrogation and transfer policies. The task force was told to provide a report to the president within 180 days unless an extension was necessary.

The Order required the CIA to use only 19 interrogation methods outlined in the United States Army Field manual on interrogations “unless the Atty. Gen. with appropriate consultation provides further guidance.”

It is unknown whether extraordinary renditions have been carried out since 2009.

Addendum A

Mahar Arar

Mahar Arar is a Canadian citizen who emigrated with his family from Syria at age 17. On September 26, 2002 he was detained by U.S. officials at JFK Airport in New York and interrogated about alleged links to al-Qaeda. Twelve days later he was chained, shackled and flown to Syria where he was held in a tiny “grave-like” cell for over then months. He was beaten, tortured and forced to make a false confession.

His wife, Mosia Mazigh, learned of his imprisonment and campaigned for his release. He was returned to Canada in October 2003. On January 24, 2004 the Canadian government established a Commission of Inquiry to review his treatment by Canadian officials. On September 18, 2006 the Commission of Inquiry cleared Arar of all charges stating “categorically there is no evidence to indicate that Mr. Arar has committed any offense or that his activities constitute a threat to the security of Canada.”

The government of Canada settled the case out of court and paid Arar $10.5 million (Canadian) and Prime Minister Stephen Harper formally apologized to Arar.

In contrast, in 2004 Arar brought a lawsuit in the U.S. in federal court in New York against John Ashcroft and others. The U.S. invoked the “state secrets privilege” and moved to dismiss the lawsuit. It was dismissed and upheld on appeal. Upon rehearing the Chief Judge of the Second Circuit Court of Appeals wrote, “If a civil remedy in damages is to be created for the harms suffered in the context of extraordinary renditions, it must be created by Congress…”

The U.S. Supreme Court declined to accept review of the case.  The U.S. government has taken no steps to make amends to Mr. Arar and his family.

Khalid El-Masri

In a recent landmark decision, the European Court of Human Rights unanimously ruled in favor of Mr. El-Masri on December 12, 2012, corroborating details of his abduction and torture by the CIA and holding that the CIA’s treatment of Mr. El-Masri was torture.

Mr. El-Masri is a Lebanese-Canadian who was kidnapped by the CIA is Macedonia. With the assistance of the Macedonian government he was held incommunicado, severely beaten, sodomized, shackled and hooded, submitted to total sensory deprivation and harshly interrogated for over three weeks. He was then flown to Afghanistan where he was incarcerated in a small, dirty dark brick factory and beaten, kicked, threatened and interrogated for more than four months. When the CIA ultimately learned that he was the wrong person he was dumped on an isolated street in Albania.

In contrast, when Mr. El-Masri brought a case in the U.S. it was dismissed and upheld on national security grounds, as in Mr. Arar’s case, and again the U.S. Supreme Court refused to accept review of his case.

United Nations Special Rapporteur on Human Rights and Counter-Terrorism Ben Emmerson described the European Court of Human Rights ruling as “a key milestone in the long struggle to secure public accountability of public officials implicated in human rights violations committed by the Bush administration CIA in its policy of secret detention, rendition and torture.” He said that the U.S. government must issue an apology for its “central role in the web of systematic crimes and human rights violations by the Bush-era CIA, and to pay voluntary compensation to Mr. El-Masri.”

To date the U.S. government has not responded.

[2] The directive has not yet been publicly released. But see George Tenet, at the Center of the Storm: the CIA During America’s Time of Crisis 208  (Harper 2007).

[3]  ICRC, Report to John Rizzo, Acting General Counsel, CIA. ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, 14 February 2007, available at http://www.nybooks.com/doc/2010/04/22/icrc-report.pdf

[4] Military Order of November 13, 2001:Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, Federal Register, Vol. 66, No.2, 16 November 2001, pp. 57831-36

[5] John Yoo and Robert Delahunty, Memorandum for William J. Haynes, II, General Counsel, Department of Defense, January 9, 2002.

[6] George Bush, The White House, Memorandum for the Vice President, et al, Harsh Treatment of Taliban and al-Qaeda detainees (7 February 2002).

[7] Alberto R. Gonzalez, Memorandum for the President, Decision re Application of the Geneva Conventions to Prisoners of War to the Conflict with Al Qaeda and the Taliban (25 January 2002).

[8] William H. Taft, IV, Legal Adviser, Department of State, Memorandum to Counsel to the President, Alberto Gonzalez, Comments on Your Paper on the Geneva Conventions (2 February 2002).

[9] CIA Inspector General’s Special Review: Counterterrorism, Detention, and Interrogation Activities, September 2001-October 2003, dated 7 may 2004 and publicly released on 24 August 2009, at 12 “CIA IG Report”).

[10] CIA IG Report at 21-22, fn. 26 and 37.

[11] A list of techniques is found in the CIA IG Report at 15.

[12] ICRC CIA Detainee Report at 4.

[13] ICRC CIA Detainee Report at 7. It is notable that the ICRC Report details the same interrogation techniques outlined in the CIA IG Report, which was not publicly available at the time.

[14] 14.       United Nations Human Rights Council, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the working group on arbitrary detention, and the Working Group on Enforced or Involuntary Disappearances, A/HRC/13/42, 19 February 2010, at 45-50 (“UN Joint Study”).

[15] UN Joint Study at para. 103.

[16] Testimony of Lawrence Wilkerson, Chief of Staff to Colin Powell U.S. Secretary of State, 2001-2005, before U.S. House of Representatives Judiciary Subcommittee on Civil Rights, June 18, 2008

[17] ICRC CIA Detainee Report, at 5, UN Joint Study at 45-50.

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February 27, 2013

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Human Rights, Law of War

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Targeted Killings: a Summary

Targeted Killings

Currently there is no legal definition of targeted killings in either international or domestic law.[1] ‘Targeted killing’ is rather a descriptive notion frequently used by international actors in order to refer to a specific action undertaken in respect to certain individuals.

Various scholars propose different definitions. Machon, for example, refers to ‘targeted killing’ as an “intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval,”[2] whereas Solis suggests that for there to be a targeted killing (i) there must be an armed conflict, either international or non-international in character; (ii) the victim must be specifically targeted; (iii) he must be beyond a reasonable possibility of arrest; (iv) the killing must be authorized by senior military commanders or the head of government; (v) and the target must be either a combatant or someone directly participating in the hostilities.[3] But whereas some scholars seek to use a human rights-based definition, [4] others propose those which do not entail the applicability of international humanitarian law. [5]

However, such definitions are incorrect for several reasons. First of all, the definition of a ‘targeted killing’ has to be broad enough as to cover a wide range of practices and flexible enough as to encompass situations within and outside the scope of an armed conflict, thus, being subject to the application of both international human rights law and international humanitarian law, as opposed to the definition provided by some scholars and even states themselves.[6] Secondly, one should bear in mind that defining an act as an instance of ‘targeted killing’ should not automatically render the illegality of such an act at stake.[7] Moreover, the definition also has to cover situations where such an act is carried out by other subjects of international law, rather than only by states.

Therefore, maintaining an element-based approach and synthesizing common characteristics of multiple definitions, it is more advisable to use the one employed by Alston and Melzer, which refers to targeted killings as a use of lethal force by a subject of international law (encompassing non-state actors) that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that ‘the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims).[8]

Moreover, being a descriptive notion, ‘targeted killing’ does not entail legal rights and obligations per se. The legality of the actions referred to as an instance of ‘targeted killing’ is rather dependent on the compliance of such an action with the norms of international law applicable to it. As it has been argued before, given its descriptive nature and a broad scope of practices referred to as ‘targeted killings’, the notion is subject to the application of a complex legal framework. The legality of every instance of ‘targeted killing’ is to be assessed on a case-by-case basis, and whether or not a specific targeted killing is legal depends on the context in which it is conducted: in an armed conflict, outside an armed conflict, or in relation to the use of force.[9]

In cases of an armed conflict specific norms of international human rights law seize to apply and are substituted by those of international humanitarian law as lex specialis.[10] Whether a particular targeted killing is legal under international humanitarian law, whose applicability is triggered by the existence of an armed conflict,[11] is determined by several criteria. Firstly, a killing is lawful only when the target is a combatant or a civilian directly participating in hostilities.[12] Additionally, the killing must constitute a military necessity, the use of lethal force must be proportionate to the direct military advantage anticipated, whereas everything feasible must be done to minimize collateral damage and harm to the civilian population.[13] Moreover, these standards apply regardless of the character of an armed conflict.[14]

Whether a particular targeted killing is legal under international human rights law depends on the compliance of the use of lethal force with the requirements of necessity and proportionality. The requirement of necessity implies that there are no other means rather than the use of lethal force in order to prevent the threat to life, whereas proportionality implies that a killing is only legal to protect life.[15] Thus, proportionality limits the permissible level of force based on the threat posed by the suspect to others, whilst necessity imposes an obligation to minimize the level of force used, regardless of the amount that would be proportionate through, for example, the use of warnings, restraint, and capture. [16]

Therefore, the use of lethal force under international human rights law is legal if it is strictly and directly necessary to save life and, thus, ‘targeted killing’ as a deliberate, intentional and premeditated deprivation of life is illegal under international human rights law with killing itself being a sole objective of an operation, unless, such an operation is intended to save the lives of others.

It is customary international law that States have the right to use force to maintain domestic order. [17] However, a targeted killing conducted in the territory of another state might violate the principle of sovereignty and amount to aggression,[18] which is prohibited by Article 2(4) of the UN Charter.[19] Nonetheless, there are certain exceptions justifying such an extra-territorial use of force. An extra-territorial targeted killing does not violate the principle of sovereignty either if the state whose sovereignty is at stake consents, [20] or if the targeting state has a right to use force in self-defense in response to an ‘armed attack’ as provided for by Article 51 of the UN Charter. [21] The second exception entails the following prerequisites: the second state is either responsible for an armed attack against the first state[22] or the second state is unwilling or unable to stop armed attacks against the first state emanating from its territory. [23]

Moreover, the use of lethal force in self-defense in response to an ‘armed attack’ must also comply with the principles of necessity and proportionality. Proportionality requires that a state acting defensively employ no more force than reasonably required to overcome the threat. In the context of cross-border operations, this limitation means that the scale and nature of the force employed cannot exceed that which is necessary. [24]

Article 38(1)(b) of the Statute of the International Court of Justice accepts ‘international custom’ as a source of law, [25] but only where this custom signifies a general practice which constitutes opinio juris, i.e is accepted as law. [26] As it has been argued above, ‘targeted killings’ do not have a legal definition and, thus, are not treated as such by states.[27] Given the absence of such a treatment, we can reasonably argue that there is no opinio juris present and that there is, thus, no rule of customary international law emerging. Moreover, the legal framework governing targeted killings contains jus cogens, i.e. peremptory norms from which no derogation is possible and which can be modified only by subsequent norms of general international law of the same character. [28] What is most important in this context is that only several subjects of international law cannot create jus cogens and thereafter impose their interpretation on the majority of States. [29]

Therefore, both insignificant contemporary state practice and the absence of opinio juris do not attest the emergence of a rule of customary international law nor do they provide any justification for such actions, which are rather governed by the legal framework described above.

Written by Jan Guardian

[1]       Philip Alston, The CIA and Targeted Killings Beyond Borders , 2 Harv. Nat’l Sec. J. 283 (2011)(hereinafter Alston, Targeted Killings), p. 295.

[2]       Matthew J. Machon, Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror. Fort Leavenworth, KS: School of Advanced Military Studies, 2006, p. 20.

[3]       Gary D. Solis. The Law Of Armed Conflict: International Humanitarian Law in War. Cambridge: Cambridge University Press, 2010 (hereinafter Solis, Law of Armed Conflict), pp. 542-43.

[4]       L. Gross. Moral Dilemmas Of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict. Cambridge: CambridgeUniversity Press, 2010, p. 106.

[5]       Michael 5 Solis, Law of Armed Conflict, supra note 3.

[6]       See e.g., Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02. IsrSC 57(6) (2006), p. 285.

[7]       Alston, Targeted Killings, supra note 1, pp. 297-298.

[8]       U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings, U.N. Doc. A/HRC/14/24/Add.6, May 28, 2010 (prepared by Philip Alston), paras. 1, 10; Nils Melzer. Targeted Killing in International Law. Oxford: OxfordUniversity Press, 2008, pp. 3-4 [online][accessed 26 February 2013].

[9]       Alston, Targeted Killings, supra note 1, p. 300.

[10]     Alston, Targeted Killings, supra note 1, p. 301.

[11]     See e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 J.C.J 226, July 8, 1996 [online][accessed 26 February 2013].

[12]     Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12., 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I][online][accessed 26 February 2013]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12., 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, [hereinafter Geneva Convention II][online][accessed 26 February 2013]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III][online][accessed 26 February 2013]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV][online][accessed 26 February 2013].

[13]     Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 51, June 8, 1977, 1125 U.N.T.S. 3 [online][accessed 26 February 2013]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 13, June 8, 1977, 1125 U.N.T.S. 609 [online][accessed 26 February 2013].

[14]     Ibid.

[15]    See e.g., Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana., Cuba, Aug. 27-Sept. 7, 1990.

[16]     U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (prepared by Philip Alston), U.N. Doc. A/61/311, September 5, 2006, pp. 42-44.

[17]     Malcolm Shaw, International Law, 6th ed. Cambridge: Cambridge University Press, 2008, p. 1126.

[18]     UN General Assembly, Definition of Aggression, A/RES/3314, December 14, 1974, art. 1 [online][accessed 26 February 2013].

[19]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI (hereinafter UN Charter), art. 2(4) [online][accessed 26 February 2013].

[20]     See, e.g., Ian Brownlie, International Law and the Activities of Armed Bands, 7 Int’l & Comp. L. Q. 712, (1958) hereinafter Brownlie, Armed Bands), p. 732.

[21]     UN Charter, supra note 19, art. 51.

[22]     Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, ICJ Rep 136, para 139 [online][accessed 26 February 2013].

[23]     Nils Melzer, Targeted Killing supra note 8, p. 288.

[24]     Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), December 19, 2005 , J.C.J. 116, para. 147 [online][accessed 26 February 2013].

[25]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 38(1)(b) [online][accessed 26 February 2013].

[26]     North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), International Court of Justice (ICJ), 20 February 1969, ICJ Reports 1969, para. 77 [online][accessed 26 February 2013].

[27]     Alston, Targeted Killings, supra note 1, p. 295.

[28]     M. Cherif Bassiouni, International Crimes: ‘Jus Cogens’ and ‘Obligatio Erga Omnes’. In: Law and Contemporary Problems. Vol. 59, No. 4, p. 68.

[29]     C. Tomuschat, Obligations Arising for States Without or Against their Will, 241 Recueil des Cours (1993), p. 307.