The United Nations Report Identifies Gross Human Rights Violations at Guantánamo and the Australian Special Broadcasting Service Releases New Photos of Abuse at Abu Ghraib

In a 40-page report, five United Nations special envoys said the United States was violating a host of human rights at the Guantanamo Bay detention center, including a ban on torture, arbitrary detention and the right to a fair trial.¹ A few hours later, the Australian Special Broadcasting Service released new photos documenting widespread abuses by US military personnel at Abu Ghraib prison.²

Is there any more doubt that the United States has failed in its respect for international law? In EarthRights International's 2005 report entitled “Shock and Law: George W. Bush's Attack on Law and Universal Human Rights,” ERI detailed the Bush Administration's assault on international law, domestic law, and international treaties.³ Shock and Law also summarized the legal transgressions of the Bush Administration relating to Guantánamo, where detainees have systematically been denied any right to challenge their detention. ERI also specifically addressed the White House's infamous “torture memos,” which argued for limiting the application of the Geneva Conventions and for loosening the rules on what constitutes torture by US soldiers in Abu Ghraib and Guantánamo Bay prisons. The UN report and the photos of Abu Ghraib are more confirmations that the US has moved away from its longstanding tradition as a nation governed by the rule of law and is instead showing an overt hostility toward the international rule of law, international human rights law in particular.

The United Nations Report on the Situation of Detainees at Guantánamo Bay

The UN report, issued by five independent investigators of the UN Commission on Human Rights, focuses on the US government's stated legal basis for detention of prisoners as described in a formal response by the United States to a UN inquiry:

The law of war allows the United States - and any other country engaged in combat - to hold enemy combatants without charges or access to counsel for the duration of hostilities. Detention is not an act of punishment, but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States.

The UN report maintains that the continuing detention of all persons held at Guantánamo Bay amounts to arbitrary detention. The UN experts report that terrorism suspects should be detained in accordance with criminal procedure that respects the safeguards enshrined in relevant international law. Just as ERI stated in Shock and Law, the UN report concluded there had been insufficient due process to determine that Guantanamo detainees were "enemy combatants" and that the primary purpose of their confinement was to prevent them from taking up arms, as opposed to mere interrogation. Accordingly, the UN experts recommend that the US either expeditiously bring all Guantánamo Bay detainees before an independent and competent tribunal or release them without further delay.

Also echoing what ERI reported in Shock and Law, the UN report states that of utmost concern are the attempts by the US Administration to redefine "torture" in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture. Particularly alarming is the US Administration's confusion with regard to authorized and unauthorized interrogation techniques. The UN report concludes that some of the treatment of detainees meets the definition of torture under the international Convention Against Torture. Therefore, the UN experts call on the US to close down the Guantánamo Bay detention centre and to refrain from any practice amounting to torture or cruel, inhuman or degrading treatment, discrimination on the basis of religion, and violations of the rights to health and freedom of religion.

Newly Released Photos of Abuses at Abu Ghraib

While there has already been widespread public knowledge of the abuses at Abu Ghraib by US military personnel after the releases in 2004 of photos documenting such abuses, the newly released photos by the Australian Special Broadcasting Service escalate the level of abuses committed at Abu Ghraib. While lower level military personnel have been held accountable for abuses depicted in earlier released photos, there has been a failure to punish any senior officers, there is also a lack of understanding as to whether those who committed the abuses depicted in the newly released photos have been held to account. Therefore, a further investigation needs to take place to determine whether an official policy existed that allowed for these abuses and to hold those responsible for such abuses accountable.

The ACLU has filed a case against the US Department of Defense for withholding photographs and videos depicting abuse at Abu Ghraib and other detention facilities.⁴ A federal judge has ruled that the US must turn over the images, noting "the freedoms that we champion are as important to our success in Iraq and Afghanistan as the guns and missiles with which our troops are armed." In a separate lawsuit the ACLU has sued Secretary of Defense Donald Rumsfeld and other high-ranking military commanders to hold them accountable for the torture and abuse of detainees in Iraq and Afghanistan. "We continue to see undeniable evidence that abuse and torture has been widespread and systematic, yet high level government officials have not been held accountable for creating the policies that led to these atrocities”, said Anthony D. Romero, Executive Director of the ACLU. "We need to look up the chain of military command, because when the rule of law is not followed all of our personal freedoms are threatened."⁵

The International Committee of the Red Cross (ICRC) has stated that Abu Ghraib Violates International Law. "We are shocked and dismayed at the mistreatment and abuse displayed in these images," ICRC spokeswoman Dorothea Krimitsas told Reuters in Geneva. "The type of treatment in these images -- video or photos -- very clearly violates the rules of international humanitarian law which are designed to protect people detained in the context of armed conflict," she added. The 1949 Geneva Conventions protecting people captured in conflict "forbid torture as well as any cruel, inhuman, or degrading treatment under any circumstance."

Toward a Pro-Law Agenda

With this new evidence we need to reenergize our struggle for the return of our society to one governed by the rule of law including the international rule of law. The concept of one law for the United States and another for the rest of the world has no place in the American tradition. We need to be reminded that respect for rule of law and universal rights are American values.

“The last few years have demonstrated to all Americans that international issues are felt right here at home,” says Katie Redford, US Office Director of EarthRights International. “The US is more involved than ever with the international community in securing our safety at home and abroad.” With the publication of Shock and Law, ERI called for a large-scale educational and political effort to counter the radical and fundamental attack on law undertaken by George W. Bush. When Justice Sandra Day O'Connor announced her retirement, ERI urged consideration of Supreme Court nominee's views on international law and human rights.⁶ ERI also expressed it's concern during Justice Roberts' nomination that his “brief record as a judge demonstrates a hostility toward the rule of law, human rights, and our international treaty obligations, giving the president unchecked power over people – real people like you and me.”⁷

With the recent appointments of Supreme Court Justices Alito and Roberts, whose records are unclear regarding their respect for the rule of law, and international law in particular, we at ERI fear the direction that the United States is going with respect to the preservation and protection of human rights. The United States should be setting higher standards, not diminishing or violating international standards. Therefore, we urge you to:

• Remind politicians of the shared American values of commitment to law and leadership on universal human rights
• Call on the White House to explain why the US repeatedly violations fundamental human rights and those freedoms for which we are fighting
• Call for the closure of the prison in Guantánamo
• Call for legal justification based on international law for the continued detention of the prisoners in Guantánamo
• Call for the trial or release of Guantanamo detainees
• Call for a full independent investigation into the abuses at Abu Ghraib to identify who set the policies that allow such abuses amounting to torture and hold them accountable for their actions

¹ See the UN Press Release and the Full Report on the Situation of Detainees at Guantanamo Bay, February 15, 2006. See also UN Alleges Torture at Guantanamo, Rueters, February 16, 2006; UN Report Alleges Torture, Baltimore Sun, February 13, 2006; UN Report Alleges Torture of Guantanamo Detainees, LA Times, February 13, 2006; U.S. Officials Call Draft U.N. Detainee Report Flawed, Unbalanced, The Washington File, U.S. Department of State, February 15, 2006.

² See Outrage over New Abuse Images, Australian Special Broadcasting Service, February 15, 2006; see also Abu Ghraib Abuse in Newly Aired Images, Forbes, February 15, 2006; New Photos of Abu Ghraib Abuse Surface, ABC News, February 16, 2006; More Abu Ghraib Abuse Photos Leaked, ABC News International, February 15, 2006; New Abu Ghraib Images Defended, the Toronto Star, February 16, 2006.

³ EarthRights International's Shock and Law report

⁴ http://www.aclu.org/torturefoia/.

⁵ New Abu Ghraib Photos Confirm Need for Independent Counsel, UN Observer and International Report, February 16, 2006.

⁶ EarthRights International Urges Consideration of Supreme Court Nominee's Views on Human Rights and International Law

⁷ EarthRights International Urges Senate to Question Supreme Court Nominee John Roberts's Commitment to Fundamental Human Rights and Rule of Law