Thesis: International Law V Torture in Post-War Iraq

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International Law v Torture in Post-War Iraq and U.S.' Liability

International and U.S. Law Against Torture and Other Ill-treatment

International and U.S. law expressly forbids torture and other forms of ill-treatment of any person in custody and in all circumstances (Human Rights Watch 2004). This law is applies to the United States' territory and anywhere else it has control. It is operational in times of peace as well as of armed conflict or a state of emergency. It protects any person, whether a citizen or a non-citizen, a prison-of-war, a "protected person," a "security detainee," or an "unlawful combatant." The law against torture and ill-treatment is, thus, absolute and this is set forth by the International Humanitarian and the Geneva Conventions, the Human Rights Law and the U.S. Law itself. These are international obligations, which bind the United States officials, military personnel and others involved in torture and other forms of mistreatment of persons in U.S. military and intelligence detention facilities (Human Rights Watch).

International Humanitarian Law: the Geneva Conventions

The First Geneva Convention in 1864 was for the amelioration of the condition of the wounded and sick in the Armed Forces in the Field (Human Rights Watch 2004). The Second Geneva Convention in 1906 was for the amelioration of the wounded, sick and shipwrecked members of the Armed Forces at sea. The Third Geneva Convention in 1929 relates to the treatment of prisoners of war. These first three conventions were revised and expanded in 1949. The Fourth Geneva Convention in 1949 was for the protection of civilian persons in time of war. All four later came to be referred as the Geneva Conventions of 1949 or simply the "Geneva Convention." Modifications to these conventions were later made in the form of three amendment protocols. The first in 1977 relates to the protection of victims of international armed conflicts. The second, also in 1977, relates to the protection to victims of non-international armed conflicts. And the third, in 2005, relates to the adoption of an additional distinctive emblem for medical services. The United States ratified these four in 1955 (Human Rights Watch).

Geneva III article 13 and Geneva IV article 27 mandate that "detainees must at all times be humanely treated (Human Rights Watch 2004). They allow interrogation but forbid all forms of "physical or mental coercion. Rape or any indecent assault on women, torture or inhuman treatment of prisoners-of-war and protected persons are serious breaches of the Conventions. They are considered war crimes. War crimes obligate the State to prosecute the suspect or to turn him over to another State for prosecution. The obligation remains regardless of the suspect's nationality or that of the victim or the place where the inhuman treatment is committed. The common article 3 of the Conventions forbids violence and murder of all kinds and expresses outrage for humiliating and degrading treatment. The fundamental guarantees of Article 75 of Protocol I of 1977 extend protection to some detainees from third countries. This Article forbids murder, torture of all kinds, corporal punishment, "outrages upon personal dignity," and any form or indecent assault (Human Rights Watch).

Human Rights Law

This prohibition covers the mistreatment of persons in custody in all circumstances during war or peace time (Human Rights Watch 2004). Among the applicable treaties are the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Universal Declaration of Human Rights and the UN Standard Minimum Rules for the Treatment of Prisoners. Moreover, it has become a fundamental principle of international law as its "preemptory norm." As the preemptory norm, it preempts all other customary laws. All States become bound to recognize and respect it whether they sign treaties, which contain it. Moreover, they are obliged to prevent and punish acts of torture even if they have not entered into treaties, which specifically require it (Human Rights Watch).

US Law

The United States itself incorporated these international prohibitions against torture into its own domestic law (Human Rights Watch 2004). It agrees and reported to the Committee against Torture that torture, as understood by the Convention is illegal under existing federal and state law and that anyone who is proven to have committed it shall be penalized according to criminal statutes. It cannot be justified by so-called "exceptional circumstances" or from orders of a superior officer. Military persons who torture or mistreat prisoners, therefore, can be prosecuted by a court-martial according to the Uniform Code of Military Justice. Under the War Crimes Act of 1996 (18 U.S.C. § 2441), U.S. military personnel and nationals who commit these crimes can be held liable for a criminal offense under the 1949 Geneva Conventions. These war crimes include violations of the common Article 3 of the Convention, which span all "violence to life and person." It specifically addresses murder of all kinds, mutilation, cruel treatment and torture. A 1994 federal statute (18 U.S.C. § 2340A) prosecutes and penalizes a U.S. national -- or anyone while in the U.S. -- who commits or attempts to commit torture. The violator can be punished with imprisonment of up to 20 years or with the death penalty if the victim dies as a result of the torture. The Military Extraterritorial Jurisdiction Act of 2000 (Public Law 106-776), also known as MEJA, punishes civilian companions or employees of U.S. forces with imprisonment who commit the same offense. Crimes generally cover all federal criminal offenses punishable by imprisonment for more than a year. This last law, however, has still to be tested when the Defense Department issues the required implementing regulations. Torture refers to infliction of severe physical or mental pain or suffering by law enforcers on another person in custody or physical control. Pain and suffering due to lawful sanctions are excluded (Human Rights Watch).

The Military Commissions Act of 2006

Background

This Act was the consequence of the U.S. Supreme Court's June 2006 decision in Hamdan v Rumsfeld against the creation of military commissions by executive fiat (Center for Constitutional Rights 2006). It held that protection extended by Common Article 3 of the Geneva Conventions applies in the case of Al Qaeda. Apprehensions about potential liability for CIA interrogators for violating the Detainee Treatment Act, which prohibits torture and coercive interrogations, were also believed to have prompted the creation of this Act. It was passed by the House and the Senate. Five proposed amendments to eliminate the Act's jurisdiction-stripping provision failed. Former President George W. Bush signed the Act into law on October 17, 2006 (Center for Constitutional Rights).

This legislation, S 3930, authorizes the President to organize military commissions to try alien unlawful enemy combatants (U.S. Congress 2006). It also authorizes the Secretary of Defense to convene the commissions and, with the Attorney-General, set up rules and procedures for the commissions. It likewise revises the War Crimes to amend the Habeas Corpus provisions of the United States Code (U.S. Congress).

S 3930 defines an "unlawful enemy combatant" as a person engaged in hostilities

against the United States or who supports such hostilities against the U.S. Or its allies purposely and materially (U.S. Congress 2006). He is a person whom the Combatant Status Review Tribunal as an unlawful enemy. It presumes that this person is part of the Taliban, al Qaeda or their allies. It declares that the trial procedures of general courts as not binding on military commissions. These procedures are applicable only when the Secretary of Defense so determines. Article 47 forbids the use of this bill in any court-martial proceedings. Its Common Article 3 states that military commissions will provide the necessary "judicial guarantees" required by civilized people and Article 3 of the Geneva Conventions. S 3930 prohibits an alien enemy unlawful combatant from invoking the Conventions when on trial by a military commission. It declares the jurisdiction of military commissions in trying offenses punishable by Articles 904 and 906 of the Uniform Code of Military Justice, the law of war, before, on and after September 11, 2001. A commission consists of five members, a military judge, a trial counsel and defense counsel, court reporters and interpreters to be selected by the Secretary of Defense (U.S. Congress).

Pre-Trial and Trial Procedures

At pre-trial, the charges are filed before a commissioned officer of the armed forces and promptly disseminated to the accused and his counsel (U.S. Congress 2006). They are given sufficient time to prepare for a defense. The bill protects the accused from self-incrimination or from testifying against himself. Statements taken before the enactment of the Defense Treatment Act in December 2005 are admissible if the military judges them reliable and sufficient and they serve the interests of justice. These statements obtained by interrogation methods otherwise violate the cruel, unusual or inhumane treatment protection provided by the U.S. Constitution. S 3930 permits their use if they were obtained before December 30, 2005 (U.S. Congress).

The bill requires the Secretary of Defense to apply the general-courts martial procedures when he deems… [END OF PREVIEW]

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