Chagos Islands: In Pursuit of Due Process

ADETOKUNBO HUSSAIN**

INTRODUCTION

 

‘So forcible within my heart I feel
The bond of nature draw me to my own,
My own in thee, for what thou art is mine;
Our [S]tate cannot be severed, we are one,
One flesh; to lose thee were to lose myself
.’

John Milton, Paradise Lost

To the familiar minds and discerning spirits, there is a certain pathos imbued in the story of the Chagos Islands and its original inhabitants. Much like how Milton’s epic poem eulogises the fall of man and the severance from their paradise whilst its sequel Paradise Regained is about restoration to the original state of affairs; one cannot but to draw parallels to the contemporary story of the Chagos Islands in their quest to regain their home or paradise. Continue reading

Advertisements

“Equality of Arms” and its Effect on the Quality of Justice at the ICC

Written by: Tosin Osasona [1]

The concept of equality of arms has a dinstinctive European origin and can be traced back to the medieval era, when dispute was settled by ordeal of trial by battle. Because the trial would be to death, a rigid set of rules were put in place to ensure parity between contestants and each contestant was put at par in terms of armament and armor.[2] This worldview midwived the common law system of adversarial proceeding. Continue reading

Undertrials :Sentenced without Conviction

Written by Garima Tiwari

Undertrial

“The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulation of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity.”[i]    -Supreme Court of India (2013)

The Supreme Court in the above case granted bail to Thana Singh who had been languishing in an Indian prison for more than 12 years, awaiting the commencement of his trial for an offence under the narcotics law.

An undertrial, or a pre-trial detainee denotes an un-convicted prisoner i.e. one who has been detained in prison during the period of investigation, inquiry or trial for the offence she/he is accused to have committed. He is an accused who is assumed to be innocent till proven guilty. He is in custody only to ensure that he appears at court as required or is available to answer questions during investigations. There is no other reason for him to be in prison Undertrials constitute 64.7% of the total prison population in India. There are over 2.41 lakh undertrial prisoners in India.[ii] An extensive investigation across the country has exposed a dark sub-culture thriving in jails across the country, not very different from the murky underworld of organised gangs and criminals. In the absence of proper legal aid, the poor and the vulnerable, especially women and youngsters, unwittingly become part of the sordid system.[iii]

Many prisoners are constrained to languish in prisons because the police do not finish investigation and file the charge-sheet in time. This is a very serious matter because such people remain in prisons without any inkling of a police case against them. Many prisoners remain in prisons for long period because of the delay in trial.

              The grant of bail[iv] is one important remedy available to reduce pre-trial detention. [v] Indian courts have reiterated that the grant of bail should be the rule rather than the exception. Because they are considered to be less likely to abscond or interfere with the investigation, bail provisions in non-bailable offences are more liberal if the accused is under sixteen, a woman, sick or infirm.[vi] Despite sounding fair, the bail provisions and their implementation are highly discriminatory. But the prisoners are unable to serve surety and as has been mentioned in the Legal Aid Committee appointed by the Government of Gujarat noted[vii]:

The bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford to furnish bail.

As the UN Human Rights Committee (UNHRC) noted, pretrial detention can therefore negatively impact the presumption of innocence,[viii] and should be used only as a “last resort.”[ix] States should only detain individuals pending trial where it is absolutely necessary. International and regional human rights instruments are explicit as to the limited circumstances under which pretrial detention is permissible. The UNHRC has stated that,

“bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the state party.”[x]

In criminal proceedings, following the first appearance before a judicial officer, European Court of Human Rights Article 5(1) only permits detention when it is reasonably necessary to prevent further offenses or flight.[xi] Thus, international standards strongly encourage the imposition of noncustodial measures during investigation and trial and at sentencing, and hold that deprivation of liberty should be imposed only when non-custodial measures would not suffice.

Most of those in the Indian prisons are poor, indigent, illiterate or semi-literate. They do not know that they are entitled to free legal aid or that they can be released on personal bond. They therefore, continue to be in jail for long periods. Lack of adequate legal aid and a general lack of awareness about rights of arrestees are principal reasons for the continued detention of individuals accused of bailable offences, where bail is a matter of right and where an order of detention is supposed to be an aberration. [xii]

The overuse of detention is often a symptom of a dysfunctional criminal justice system that may lack protection for the rights of criminal defendants and the institutional capacity to impose, implement, and monitor non-custodial measures and sanctions. It is also often a cause of human rights violations and societal problems associated with an overtaxed detention system. One of the fundamental elements of human rights law which importance grew over time is the concept of “Fair Trial”. Taking this into account, the question rises how far the application of the fair trial rights stretches into the pre trial stage of investigation. Answering this question is far from easy and as Safferling points out correctly, it is by no means obvious what the fair trial concept really encompasses and what the singular rights within this concept really stand for.[xiii]

In India, apart from the Prisoners Act, 1984, there is a Model Prison Manual in place and the various judicial pronouncements have made it clear that prisoners are entitled to human rights, the most important of which is presumption of innocence till proven guilty.

In 1982-83, the All India Jail Reforms Committee under Justice A.N. Mulla came out with suggestions for prison reform. Yet to be implemented, the committee had recommended that undertrial prisoners should be lodged in separate facilities, away from convicted prisoners. It had also called for quick trials, simplification of bail procedures and suggested that bail should be granted to the accused as a matter of right unless the prosecution could prove that releasing the accused on bail endangered the security of society.[xiv]  Another suggestions is that it should be made mandatory for the jail authorities to educate them about their rights and provide them legal aid. The plight of the wrongfully confined prisoners is compounded when jail authorities refuse to release information about them in public domain. One very relevant solution is Section 436A of the Indian Criminal Procedure Code states that the maximum period for which an undertrial prisoner can be detained without being released is not more than 50% of the maximum imprisonment specified for the charge he/she is booked for, except if the offence attracts death as the maximum punishment. According to the law, such prisoners can be released on personal bond if they cannot furnish bail. This provision is hardly used by authorities. Public-spirited citizens and lawyers could also take up these matters. The prison authorities should display the updated information every month on their website and also display hard copies of the information in every prison in a place where prisoners have access.

As Justice P.N Bhagwati, “It is high time that the public conscience is awakened and the government as well as the judiciary begins to realise that in the dark cells of our prisons there are a large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice – a commodity which is tragically beyond their reach and grasp.”[xv]

 


[i] Thana Singh v. Narcotics Bureau of Narcotics (23 January, 201)

[ii] National Crime Recorts Bureau Data 2012 (India)

[iv] The Indian Code of Criminal Procedure, 1973 does not define the term “bail” although offences are classified as bailable and non-bailable.

[v] The main bail and bonds provisions are provided in Chapter XXXIII of the Indian Criminal Procedure Code.

[vi] Handbook of Human Rights and Criminal Justice in India, by South Asia Human Rights Documentation Centre, Oxford University Press, 2nd edition, 2007, p. 62.

[vii]Report of the Legal Aid Committee appointed by the Government of Gujarat, 1971 (headed by Justice P.N. Bhagwati) (p. 185)

[viii] Human Rights Committee, Concluding Observations: Argentina, CCPR/CO/70/ARG (2000), para. 10.

[ix] United Nations Minimum Rules of Non-Custodial Measures, Principle 6.1

[x]  Hill v. Spain, Communication No. 526/1993, para. 12.3.

[xi] Council of Europe, Recommendation (2006)13 on the Use of Remand in Custody, the Conditions in which it takes place and the Provision of Safeguards against Abuse, para. 6.

[xiii] SAFFERLING,CHRISTOPH J. Towards an International Criminal Procedure, Oxford 2001 p.26

[xv] Hussainara Khatoon and Others v. Home Secretary, State of Bihar AIR 1979 SC 1360.

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.