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Accountability for Human Rights Abuses by the United States. Thematic Hearing before the Inter-American Commission on Human Rights March 20, 2009. Order of Presentation. Other members of our delegation include: Theresa Harris , Human Rights USA Piper Hendricks , Human Rights USA

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accountability for human rights abuses by the united states

Accountability for Human Rights Abuses by the United States

Thematic Hearing before the Inter-American Commission on Human Rights

March 20, 2009

order of presentation
Order of Presentation

Other members of our delegation include:

  • Theresa Harris, Human Rights USA
  • Piper Hendricks, Human Rights USA
  • Lynne Kates, Center for Constitutional Rights
  • Jamil Dakwar, American Civil Liberties Union
purpose of this hearing
Purpose of This Hearing
  • Address the United States Government’s failure, thus far, to hold persons accountable for detainee abuse, torture, and other human rights abuses.
  • Seek specific recommendations by the Commission that the United States Government satisfy its legal obligations as to these abuses.
summary of facts
Summary of Facts

Incontrovertible evidence exists of detainee abuse committed by U.S. Government officials and military personnel.

ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody

February 2007

  • Suffocation by water or waterboarding
  • Prolonged stress standing
  • Beating by use of a collar
  • Confinement in a box
  • Prolonged nudity
  • Sleep deprivation
  • Subjection to noise and cold water
  • Denial of solid food

“The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.  In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.”

summary of facts1
Summary of Facts

Examples of reports and statements confirming these abuses:

summary of facts2
Summary of Facts

High-ranking former Government officials have publicly admitted to authorizing the use of torture on detainees.

Former President Bush

January 11, 2009

summary of facts3
Summary of Facts

The United States Government has yet to hold high-ranking officials accountable for these abuses.

summary of facts4
Summary of Facts

Rather, the current administration has indicated its disinclination to hold human rights abusers accountable:

  • “The prospect of individual liability increases the likelihood that officials will make decisions based upon fear of litigation rather than appropriate military policy.” U.S. Department of Justice, Supplemental Brief, Rasul v. Rumsfeld, March 12, 2009.
  • “Two Obama advisers said there's little—if any—chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.” Advisers to President-elect Obama, Huffington Post, Nov. 18, 2008.
legal obligations
Legal Obligations

The United States has a legal obligationto effectivelyinvestigate, prosecute, and punish those responsible for human rights violations, and to protect victims’ rights to truth, justice, and reparation for these crimes.

legal obligations1
Legal Obligations

Duty to Investigate, Prosecute, and Punish

  • Enforcement of the law will:
    • Promote respect for the rule of law
    • Provide justice and healing to victims
    • Deter the commission of human rights abuses
  • Failure– or refusal – to hold criminals accountable will:
    • Generate impunity
    • Deny victims their right to justice
    • Condone human rights violations
    • Create conditions that increase the likelihood of torture
    • Reduce the United States’ credibility
legal obligations2
Legal Obligations

The United States has a duty to protect victims’ rights:

Right to Truth

  • Effective investigation
  • Reveal the facts
  • Reveal the extent of the Government’s involvement
  • Identify those responsible

Right to Justice

  • Prompt recourse to a competent tribunal

Right to Reparation

  • Sufficient
  • Effective
  • Prompt
  • Proportionate
obstacles to accountability
Obstacles to Accountability

Denying Access to the Courts

The Military Commissions Act

Denial of Geneva Conventions Protections

  • Section 5 prohibits any person from:
    • Invoking Geneva Conventions as source of rights
    • In habeas or civil proceedings
    • Against current or former U.S. officials or military personnel

This provision:

  • Precludes enforcement of basic human rights protections
  • Denies victims right to justice
  • Inhibits victims’ right to reparation
obstacles to accountability1
Obstacles to Accountability

Denying Access to the Courts

The Military Commissions Act

Denial of Access to Courts

  • Section 7 denies alien detainees:
    • The right to habeas corpus
    • Access to U.S. courts for any other action
  • Applies to detainees held since 9/11/01

This provision:

  • Denies victims access to courts and right to justice
  • Eliminates possibility of obtaining reparation
  • Deprives victims of right to truth
obstacles to accountability2
Obstacles to Accountability

Denying Access to the Courts

The Military Commissions Act

Redefining War Crimes

  • Section 6 redefines war crimes by:
    • Removing “humiliating and degrading treatment” entirely
    • Defining “cruel or inhuman treatment” more narrowly if committed after 10/17/06

This provision:

  • Prevents punishment of war crimes
  • Deprives victims of right to truth
  • Condones serious human rights abuses
  • Creates impunity
  • Denies right to justice
obstacles to accountability3
Obstacles to Accountability

Using Immunities and Defenses to Impede Accountability

The Military Commissions Act

“Advice of Counsel” Defense

  • Section 8(b) precludes culpability for war crimes:
    • Approved by the U.S. Government
    • Authorized by “advice of counsel”
    • Occurring between 9/11/01 – 1/30/05

This provision:

    • Grants immunity to human rights abusers
    • Violates international law
    • Creates a culture of impunity
    • Precludes civil and criminal accountability
    • Denies right to truth, justice, and reparation
obstacles to accountability4
Obstacles to Accountability

Using Immunities and Defenses to Impede Accountability

Misuse of the State Secrets Doctrine

Intended Purpose:

  • Evidentiary privilege
  • Withhold specific evidence to protect national security

Misuse:

  • Invoked to have cases dismissed entirely

This practice:

  • Prevents victims from knowing truth about abuses
  • Denies justice todetainees and other victims
  • Shields perpetrators from accountability
obstacles to accountability5
Obstacles to Accountability

Using Immunities and Defenses to Impede Accountability

“Qualified Immunity” Defense

Intended Purpose:

  • Protect officials from frivolous lawsuits

Misuse:

  • Invoked to preclude liability for torture and other abuse
  • Claimed detainees’ right to freedom from torture “not clearly established”

This practice:

  • Prevents victims from knowing truth about abuses
  • Denies victims right to justice
  • Precludes possibility of obtaining reparation
obstacles to accountability6
Obstacles to Accountability

Using Statutes of Limitation to Preclude Prosecutions

Existing statutes of limitation:

  • Most U.S. federal crimes: 5 years.
  • Torture (not resulting in death): 8 years.
  • Torture (resulting in death): none.
  • Conspiracy:5 years.

Statutes of limitation for human rights abuses:

  • Violate international law
  • Impede victims’ rights to justice and reparation
  • Contribute to an environment of impunity

The United States Government must:

  • Initiate criminal investigations into abuses
  • Amend U.S. law to toll or repeal statutes of limitations
obstacles to accountability7
Obstacles to Accountability

Bilateral Immunity Agreements (BIAs)

BIA Policy:

  • United States has signed 100+ BIAs with other countries
  • Congress recently rescinded legislation authorizing the BIA policy
  • But BIAs have not yet been revoked

Enforcement of BIAs would:

  • Grant immunity for war crimes and crimes against humanity
  • Deny right to redress and justice
  • Encourage countries to ignore obligation to punish abuses

The United States Government should:

  • Revoke BIAs
  • Sign and ratify Rome Statute
proposed accountability measures
Proposed Accountability Measures

Various accountability measures might be used to address these abuses:

  • Criminal investigations and prosecutions
  • Commissions of inquiry
  • FOIA requests and litigation
  • Reparations
proposed accountability measures1
Proposed Accountability Measures

Criminal Investigations and Prosecutions

The United States has a legal obligation to conduct criminal investigations and prosecutions of human rights abuses.

Criminal trials would:

  • Restore victims’ rights to truth and justice
  • Afford victims and society right to know extent of Government’s involvement
  • Deter future abuses
  • Reaffirm commitment to human rights and rule of law

The United States Government must:

  • Effectively investigate human rights violations
  • Identify perpetrators
  • Prosecute and punish those responsible
proposed accountability measures2
Proposed Accountability Measures

Commissions of inquiry

A commission of inquiry would:

  • Afford victims and society the facts about abuse
  • Identify those responsible

A commission of inquiry would not:

  • Hold perpetrators accountable
  • Grant reparations to victims
  • Satisfy the United States’ legal obligations, if immunity is granted

The United States must:

  • Effectively investigate human rights abuses
  • Identify those responsible
proposed accountability measures3
Proposed Accountability Measures

FOIA requests and litigation

  • Used to secure information about violations of law committed by United States Government officials
  • But only provide a partial view, and cannot serve as primary means of obtaining truth about abuses
  • The United States Government itself must investigate:
    • abuses committed
    • extent of the Government’s role in those abuses
    • rationale for the decisions to implement these policies
    • ramifications of these events
proposed accountability measures4
Proposed Accountability Measures

Reparations

The following forms of reparation may be required:

  • Restitution
    • Restore victims to place of residence or another country where they will be safe from harm
  • Compensation for:
    • Physical or mental harm
    • Lost opportunities and lost earnings
    • Medical and legal fees
  • Rehabilitation, including:
    • Medical or psychological care
    • Social or legal services
  • Satisfaction
    • Reveal truth about abuses
    • Issue public apology
conclusion
Conclusion

Evidence of human rights violations committed by United States Government officials is incontrovertible.

To meet its legal obligations, United States Government must:

  • promptly and effectively investigate abuses
  • ensure those responsible are held to account
  • provide adequate reparation to victims of abuse
request
Request

Issue recommendations that the United States Government:

  • Initiate criminal investigations and prosecutions
  • Reform laws that deny victims the right to truth, justice, and reparation
  • Undertake other institutional reforms necessary to bring Government into compliance with international legal obligations
  • Make any and all necessary reparations, including issuing a public apology to victims