What are post-PACT Act possibilities for recognition and compensation of Iraqi victims of war toxins?

PREVENTION AND CONFLICT

What are post-PACT Act possibilities for recognition and compensation for Iraqi victims of war toxins?

The US PACT Act, enacted in 2022, offers unprecedented healthcare and compensation for 3.5 million US military veterans suffering from illnesses linked to toxic exposure. What are the possibilities for comparable recognition and support for Iraqi civilians who continue to live amidst the same war toxins, and what role can international law play in achieving justice?

April 2023 marks eight months since the PACT Act (Promise to Address Comprehensive Toxics Act) went into effect in the United States in August 2022. The PACT Act is “the most significant law ever helping victims exposed to toxic burn pits,” as described in US President Joe Biden’s February 2023 State of the Union address. Indeed, the PACT Act unprecedentedly offers healthcare and disability compensation for approximately 3.5 million veterans harmed by burn pits and other toxic exposures. It not only promises long awaited compensation for veterans who served in the US wars in Iraq and Afghanistan beginning in 2003 and 2001 respectively, but also covers veterans harmed by herbicides during the Vietnam War, 1990–91 Gulf War veterans, and those who served in numerous other locations including Syria, Yemen, Lebanon, and many more. Veterans will be presumed eligible according to dates and locations of service, and no longer have to prove the direct link between their exposure and their illness, often an impossible task.

No comparable mechanism is in place, however, to recognize and assist civilians facing ongoing toxic assaults in contaminated environments, including in Iraq. Iraqi civilians suffer from disturbingly high rates of congenital anomalies (birth defects) and cancers, leading to conditions of inescapable health devastation, something I deem “toxic saturation” in my research.

Does the PACT Act offer any hope for comparable support for non-US civilians? Or does the Act represent the latest iteration of a deeply flawed approach when it comes to the US’s response to victims of war toxins? In this post, I address these questions as they impact Iraqi civilians, and examine international law’s role for addressing irreparable harm experienced by civilians forcibly exposed to war toxins.

The Scale of “Toxic Saturation”

A 2019 Environmental Pollution study documented that children living in proximity to a US military base near Nasiriyah, Iraq, had an increased likelihood of congenital anomalies including neural tube defects (such as spina bifida, anencephaly, and hydrocephalus), congenital heart diseases, and musculoskeletal malformations (including missing right hand and paralyzed clubfoot). Doctors in Fallujah have long reported a staggering post-2003 surge in birth defects.

It is important to understand the scale of war toxins that the US military and its allies introduced to Iraq. More than 780,000 rounds of depleted uranium (DU) were used in 1991, and more than 300,000 rounds in 2003, as reported by Dutch peace organization PAX. As explained by the US Department of Veterans Affairs (VA), “DU is a potential health hazard if it enters the body, such as through embedded fragments, contaminated wounds, and inhalation or ingestion.”

The US military admits to using white phosphorus as an incendiary weapon in Fallujah in 2004. Incendiary weapons, as explained by Human Rights Watch (HRW), “produce heat and fire through the chemical reaction of a flammable substance, cause excruciating burns and destroy homes and other civilian structures.” The US later used white phosphorus again in Iraq and Syria in operations targeting the Islamic State. As described by HRW’s Stephen Goose, “No matter how white phosphorus is used, it poses a high risk of horrific and long lasting harm in crowded cities like Raqqa and Mosul and any other areas with concentrations of civilians.”

Another key source of toxic exposure for veterans is burn pits. As I wrote for Al Jazeera in August 2022, burn pits are open air pits of military waste, sometimes as large as football fields, used to burn and destroy weapons, chemicals, plastics, and medical and human waste, typically using jet fuel. Joe Biden has been vocal about his son Beau’s fatal brain cancer, believed to be caused by exposure to burn pits while serving with the US military in Iraq and working in Kosovo.

International Law and Compensation for Health Destruction

Compensation is essential for providing medical care and lifetime assistance to Iraqis struggling to survive due to toxic saturation. Veterans have faced health devastation following relatively short-term exposure, while civilians have been left behind to languish amidst war toxins. As noted in my research on water access, however, international law faces significant enforceability challenges regarding reparations for victims of environmental destruction in the context of armed conflict.

The US in particular has a discouraging track record. The US government long denied illnesses linked to deadly, dioxin-containing herbicides, including Agent Orange, experienced by Vietnam War veterans. Funding dedicated to Vietnamese civilians and environmental clean-up has been a mere fraction of what is needed, especially as children continue to be born with severe congenital anomalies nearly fifty years after the Vietnam War ended in 1975.

In principle, international law clearly provides the basis for reparations for Iraqi civilians. Additional Protocol I (1977) to the Geneva Conventions addresses the illegality of environmental damage and health destruction, and reparations for harm caused. Article 55 requires that care is taken in warfare “to protect the natural environment against widespread, long-term and severe damage.” This protection prohibits methods “which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” Article 91 states that parties that violate international humanitarian law shall “be liable to pay compensation.” The Environmental Modification Convention forbids military “environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury.”

Furthermore, monetary compensation is not the only aspect of reparations currently being denied for Iraqis. As Christine Evans writes, “There is a common misconception that reparations are synonymous with monetary compensation” when reparations actually encompass financial and non-financial meanings: “restitution, compensation, rehabilitation, satisfaction (disclosure of the truth), and guarantees of non repetition.”

Following the significant agreement on “loss and damage” funding at COP27 in November 2022, compensation for developing countries impacted by climate disasters, long on the agenda of climate justice advocates, was brought to the center of the world stage, though much work remains to be done to ensure compensation is provided to those in need of it.

Comprehensive environmental justice requires that all victims of environmental injustice, including both victims of the climate crisis and of toxic environmental assaults during and following war, are recognized and compensated. The PACT Act is an overdue victory for veterans and sets a precedent for compensation following wartime toxic exposure. The US government cannot stop here, only recognizing veterans affected by war toxins. The US must be pressured to acknowledge the existence and suffering of Iraqi civilians and all people harmed by war toxins, and to provide the care and compensation that is owed to them.

April 21, 2023. Carly A. Krakow, Visiting Scholar (AY 2022-2023)
Carly A. Krakow is a writer, journalist, faculty member at the NYU Gallatin School, and completing her PhD in International Law at the London School of Economics as a Judge Rosalyn Higgins Scholar and Modern Law Review Scholar. 

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

Prevention economies in Kenya: Peace, Power & Pragmatism?

PREVENTION AND CONFLICT

Prevention economies in Kenya: Peace, Power and Pragmatism?

While international security interests continue to hijack the ‘triple nexus’, local CSOs have used Preventing and Countering Violent Extremism (P/CVE) to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

The Emergence of the ‘Preventing and Countering Violent Extremism’ Agenda

“Conflict prevention” is an umbrella term for a variety of interventions in the peacebuilding field that aim at addressing factors that could lead to violent conflict. SDG 16 in the UN 2030 agenda makes an important contribution to the realm of conflict prevention with the target goal to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” After years of hard counter-terrorism strategies, preventive measures to address the root causes of radicalization have also gained traction in the Global War on Terror. The United States, supported by the United Nations, have played a central role in this paradigm shift and the introduction of the concept ‘Preventing and Countering Violent Extremism’ (P/CVE), which replaced the dominant notion of ‘Counter-Terrorism’ (CT) in policy spaces in 2015. P/CVE has since become the globally accepted security strategy to address violent extremism, by underscoring a whole-of-society approach, as well as the localization of the fight against terrorism. While P/CVE is very much a security strategy, the agenda is now also closely linked to SDG 16 through the emphasis on strengthening civil society and government institutions, building social cohesion and resilience, addressing local grievances and respecting human rights. At the core of this union between P/CVE as a security strategy and peacebuilding lies the concept of ‘human security’, which is defined by the UNDP as ‘freedom of want’ and ‘freedom of fear’. ‘Human security’ focuses on the individual grievances that may incite violence. Consequently, many security approaches are no longer solely based on military power, but include humanitarian, development, and peacebuilding initiatives. Within this vein, CSOs have thus become integral to the realization of the agenda. As a result, critics argue that P/CVE has securitized and co-opted the civil society space, thereby forging a dangerous liaison between security actors and CSOs.

Securitization of the Civil Society Space in Kenya

In the first years, after its global adoption in 2015, the P/CVE agenda was implemented through National Action Plans (NAPs) with great enthusiasm from the international community. Particularly, the United States supported its allies around the world in the adoption of the agenda through technical assistance and donor funding. Kenya is one of the US’s main strategic allies in the Global War on Terror in Africa and has been at the forefront of adopting the P/CVE agenda in the last 7 years. While donors decreased their funding through COVID-19 and the presidential election in 2022, P/CVE is still one of the main donor priorities in Kenya to this day. Since the introduction of P/CVE in 2016 through a National Action Plan (NAP), many CSOs have geared towards the implementation of P/CVE programs to access funding for their programs. The international donor industry, which is heavily influenced by security interests in the Horn of Africa, has thus very much impacted the civil society space in Kenya. As the Kenyan government considers violent extremism a national security issue, every organization that implements P/CVE must report to the National Center for Counterterrorism (NCTC) under the 2012 Prevention of Terrorism Act (POTA) since a 2019 amendment. CSOs therefore have to report to the authorities about P/CVE programs, which can include sensitive information about the program participants. As a consequence, local communities have accused CSOs of espionage and surveillance, thereby criticizing the alignment of aid programs with security interventions. While the securitization of the civil society space in Kenya through the integration of security strategies into aid programs in the name of prevention has certainly led to many trust issues between CSOs and local communities, the question of agency and resistance of CSOs is central in understanding P/CVE in Kenya. CSOs are subject to complex negotiations between international security agendas, funding scarcity, and local agency. I will briefly discuss the entanglement of the security-oriented P/CVE agenda in three key areas in the aid architecture: human rights (1), humanitarian and development aid (2), and peacebuilding (3).

The Entanglement of P/CVE with the Aid Architecture

In the aftermath of heavy security crackdowns against Muslim communities after the Westgate mall attack in 2013 and counter-terrorism operations along the coast, Kenyan human rights organizations were very vocal about the human rights violations including forced disappearances and extrajudicial killings committed by Kenyan security forces and brought international attention onto the situation. As a response, the government listed two leading human rights organizations as terrorist entities which resulted in the freezing of their bank accounts. After a legal battle the court finally ruled the accusation as unjust and commanded the unfreezing of assets. Nevertheless, the incident sent a clear message to human rights organizations nation-wide. It is therefore, perhaps, surprising how many human rights organizations are currently actively implementing P/CVE programs despite of the previously mentioned issues. While the P/CVE agenda commits to a human rights-based approach to preventing violent extremism, the often-times close involvement of security forces in the implementation of P/CVE also endangers the integrity of CSOs. I would argue, however, that P/CVE can and should also be understood as part of a pragmatic response by human rights organizations that engage in a difficult balancing act between shining light onto human rights violations and their own security. The close relationship with the government and security forces in the implementation of P/CVE seems to allow human rights organizations to expose certain incidents without feeling immediate repercussions. Additionally, at the coast, CSOs established a consortium to protect each other from similar accusations. Human rights organizations and other CSOs also contest the 2019 amendment of POTA that obliges all organizations that implement P/CVE to report information to the NCTC. They are thus forced to find a pragmatic path between dialogue with the security forces and protection of their own work.

Humanitarian and development programs are frequently also part of P/CVE responses in Kenya. Especially in the North-Eastern region of Kenya, humanitarian and development interventions converge with security strategies to tackle violent extremism. The climate crisis has led to the worst droughts and food emergency situation in forty years. The redirection of funding channels to European countries through the Ukraine war and global wheat price crisis also partly contribute to the lack of funding to address humanitarian needs in the region. Additionally, foreign actors often prioritize other countries as they consider Kenya as a middle-income country. Since P/CVE continues to be a funding priority for many donors in the North-Eastern region of Kenya, many local CSOs apply for P/CVE funding to allocate resources and later redirect them to humanitarian assistance programs. Local CSOs, in asserting their agency, therefore also take advantage of the P/CVE industry to access funding that they would otherwise not receive in a situation of humanitarian emergency.

Finally, peacebuilding CSOs in particular have shifted their focus to the implementation of P/CVE as a consequence of the huge donor funding supply for these programs, oftentimes using the labels of “P/CVE” and “peacebuilding” interchangeably. While both P/CVE and peacebuilding are very broadly defined terms, the label P/CVE raises a lot of suspicion in local communities and creates security risks for local aid workers who implement these programs. Nevertheless, P/CVE is also an instrument for local communities to keep security forces at arm’s length. Many P/CVE programs contain community policing as an integral element which redirects security governance to the local community. It appears that local communities are able to contain direct police engagement in the community, which decreases incidents of police brutality against youth. While many local peacebuilders explain how violent extremism actually is not a main concern in their communities, P/CVE seems to be an important tool to not only gain funding but again paradoxically help secure the community against government crackdowns.

Ultimately, local CSOs in Kenya demonstrate great pragmatism in the implementation of P/CVE by balancing security concerns and local needs within an increasingly competitive donor market. At the beginning, P/CVE might have been a top-down approach to tackle local insecurities that are of concern for international actors and global stability. While international security interests continue to hijack the ‘triple nexus’, local CSOs have used P/CVE to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

April 11, 2023. Nora Naji, Visiting Scholar (AY 2022-2023)
Nora Naji is a PhD candidate at the University of Basel, and an associated researcher at swisspeace. Her dissertation ‘Commodifying peace: Intimate warfare and prevention economies in Kenya’ builds on the securitization premise and sets out to situate the agenda of “Preventing and Countering Violent Extremism” (P/CVE) in Kenya within a larger discussion of prevention economies.

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

Minimum Standards for Transfer: International Law Concerning Rendition in the Context of Counter-Terrorism

PREVENTION AND CONFLICT

Minimum Standards for Transfer: International Law Concerning Rendition in the Context of Counter-Terrorism

This Legal Advisory sets out the minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfers, articulating threshold standards, substantive norms, and procedural requirements; and concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances. 

In January 2009, President Obama promulgated a number of Executive Orders that created several Task Forces to advise him on certain aspects of U.S. counter-terrorism policy. One of the key issues under review is the U.S. practice of rendition. Several bodies of international law binding on the United States set out rules relevant to the transfer of individuals outside the United States to U.S. territory or to the custody of another state in the context of counter-terrorism operations. International refugee law, international human rights law, and international humanitarian law apply extraterritorially and concurrently. 

Examining human rights, refugee law, and humanitarian law norms together allows for the identification of a minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfer of an individual within its effective control. The transfers to which this minimum standard applies include, for example, “renditions to justice” to the United States or a third state; renditions pursuant to an international arrest warrant or request for surrender by an international court; transfers carried out at the close of hostilities in the context of armed conflict (i.e. repatriations of prisoners of war or security detainees); and transfers across borders of individuals detained in the context of armed conflict. 

This Legal Advisory sets out this minimum baseline standard, articulating threshold standards, substantive norms, and procedural requirements. As a threshold matter, formal transfer processes may not be intentionally bypassed and the United States must have a valid basis for apprehending an individual in contemplation of transfer. Substantively, the U.S. government may not transfer an individual to the custody of a state where he/she is at a real risk of: torture or ill-treatment; persecution; enforced disappearance; or arbitrary deprivation of life. Procedurally, an individual facing transfer must have the ability to challenge the basis for his deprivation of liberty in contemplation of transfer prior to transfer before an independent decision-maker. This challenge must allow the individual to contest the transfer on the basis of fear of being subject to any of the risks protected against by international law. This Legal Advisory concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances. 

On the Record: US Disclosures on Rendition, Secret Detention, and Coercive Interrogation

PREVENTION AND CONFLICT

On the Record: US Disclosures on Rendition, Secret Detention, and Coercive Interrogation

This report is a joint effort between the Center for Human Rights and Global Justice and Amnesty International, Cageprisoners, the Center for Constitutional Rights, Human Rights Watch, and Reprieve.

This report aims to shed light both on what has been revealed and what has been obscured by the U.S. government. It also seeks to demonstrate the enormous range of information that is in the public sphere about the nature and scope of the U.S. rendition, secret detention, and coercive interrogation activities. This exercise makes it increasingly evident that the threats of disclosure of “state secrets” and harm to national security are ill-founded, and that the real concern lies in the very fact that a program of this nature exists and continues to operate.

According to the United States (U.S.) government, shortly after September 11, 2001, the Central Intelligence Agency (CIA) was tasked with planning a “separate” program to begin secretly detaining and interrogating individuals outside of the United States. At that time, the CIA was also reportedly authorized to forcibly transfer individuals to foreign countries for interrogation in a practice commonly known as “rendition” or “extraordinary rendition.” Starting with the rendition of Ibn al-Shaykh al-Libi to Egypt in January 2002, and the detention and interrogation of Abu Zubaydah in March 2002,4 the U.S. post-9/11 rendition, secret detention, and coercive interrogation program has since swept up many individuals, the vast majority of whom are still unaccounted for by the United States. 

Between 2001 and September 2006, information about CIA rendition, secret detention, and coercive interrogation operations emerged piecemeal. The U.S. government was the source of some of this information: officials discussed rendition in the media and on Capitol Hill, but gave only partial accounts; they announced the capture of individuals, but refused to disclose their whereabouts; and they informed the National Commission on Terrorist Attacks Upon the U.S. (the 9/11 Commission) that certain individuals were “currently in U.S. custody,” but refused to give the Commission the access it sought to the detainees themselves. The U.S. government also provided “statements” culled from interrogations on behalf of certain secret CIA detainees in the cases of United States v. Paracha and United States v. Moussaoui. Media, inter-governmental bodies (such as the Council of Europe and the United Nations (UN)), human rights organizations, and former detainees also provided comprehensive insights into the CIA’s activities. 

In an effort to obtain further information from the U.S. government about its rendition, secret detention, and coercive interrogation activities, in 2004, 2006, and 2007, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law Center for Human Rights and Global Justice submitted Freedom of Information Act (FOIA) requests to several U.S. agencies, including the CIA. Following a refusal to disclose the majority of the information sought, AIUSA, CCR, and NYU IHRC filed suit in June 2007 in federal court in the Southern District of New York. In spring 2008, the CIA admitted that it had more than 7,000 relevant documents, but sought a ruling that it did not need to disclose the vast majority of those documents, arguing, inter alia, that it cannot be compelled to disclose information it argues is properly classified. In response, on June 26, 2008, AIUSA, CCR, and NYU IHRC filed an opposition to the CIA’s motion for summary judgment and a memorandum of law in support of a cross-motion for partial summary judgment.

Surviving the Darkness: Testimony from the U.S. “Black Sites”

PREVENTION AND CONFLICT

Surviving the Darkness: Testimony from the U.S. “Black Sites”

This report is a condensed version of the Declaration. It omits references to, and copies of, most exhibits to the Declaration but is otherwise unchanged. After more than eighteen months of being held “off the record” by the U.S. government, the Declaration and this report is Mohamed Bashmilah’s opportunity to tell his own story. Here, he puts back on the record the truth about the extensive human rights violations he and his family have suffered as a result of his enforced disappearance.

On September 6, 2006, President George W. Bush acknowledged that the United States operates a program of secret detention in the “War on Terror.” In the same statement, President Bush indicated that fourteen of the individuals held in the program had been transferred to Guantánamo Bay and that “…there are now no terrorists in the CIA program.” President Bush did not disclose the fate and whereabouts of the other individuals known or believed to have been secretly detained at some point by the U.S. government, and he left open the possibility that the CIA program would be used again.

A number of the individuals known or suspected to have been held secretly by the United States are still missing. The fate and whereabouts of a smaller number is known as a result of the efforts of human rights organizations. 

Since 2006, the International Human Rights Clinic at New York University School of Law has represented two such individuals—Yemeni nationals Mohammed Abdullah Saleh al-Asad and Mohamed Farag Ahmad Bashmilah. Their stories exemplify the nature and breadth of the U.S. system of detention in the “War on Terror,” as well as the treatment that individuals targeted in the “War on Terror” suffer.

December 2007. 

Off the Record: US Responsibility for Enforced Disappearances in the ‘War on Terror’

PREVENTION AND CONFLICT

Off the Record: US Responsibility for Enforced Disappearances in the ‘War on Terror’

Based on research by six major human rights groups—Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at NYU School of Law, Human Rights Watch and Reprieve— this briefing paper identifies individuals believed to have been held at some point by the United States in secret sites, all of whom remain missing.

On September 6, 2006, President George W. Bush revealed that the United States runs a system of secret detention in the “War on Terror,” but he did not disclose how many individuals were secretly detained. While only the U.S. government knows exactly who remains missing, Off the Record provides the most comprehensive list of these individuals, who are believed to have been subject to an enforced disappearance for which the United States bears responsibility. 

This briefing paper provides information about detainees already identified as “disappeared” (for example, Ali Abdul-Hamid al-Fakhiri, commonly known as Ibn al-Shaykh alLibi) and names four missing detainees for the first time. It reveals the extent to which the United States illegally uses “proxy detention” to empty its secret sites and demonstrates that far from targeting the “worst of the worst,” the system sweeps up low-level detainees and even involves the detention of the wives and children of the “disappeared,” in violation of their human rights. 

Off the Record also documents allegations concerning the treatment of detainees while in secret detention, including torture and other cruel, inhuman or degrading treatment or punishment.

The briefing paper is available in Arabic, Spanish and English.

Torture by Proxy: International and Domestic Law Applicable to Extraordinary Rendition

PREVENTION AND CONFLICT

Torture by Proxy: International and Domestic Law Applicable to Extraordinary Rendition

This joint report with the International Human Rights Committee of the Association of the Bar of the City of New York analyzes the legal standards applicable to the practice of Extraordinary Rendition. Its main findings are that Extraordinary Rendition is an illegal practice under both domestic and international law, and that, consistent with U.S. policy against torture, the U.S. government is duty bound to cease all acts of Extraordinary Rendition, to investigate Extraordinary Renditions that have already taken place, and to prosecute and punish those found to have engaged in acts that amount to crimes in connection with Extraordinary Rendition.

The Report defines Extraordinary Rendition as the transfer of an individual, with the involvement of the United States or its agents, to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment.

The Report begins with an overview of the practice of Extraordinary Renditions as reported in the press; since Extraordinary Rendition appears to be a covert activity, the factual scenarios included in the Report have not been verified. Examples are given of cases in which the United States has allegedly been involved in transfers of individuals from inside the United States, from foreign states, and from U.S. military outposts to states well known to practice systematic or uncontrolled torture. The level of involvement of U.S. officials varies from case to case, but the facts in each example suggest that the United States is using this form of transfer as an interrogation technique in the “War on Terror.” Indeed, while the use of Extraordinary Rendition has been denied in all official settings, officials speaking off the record have acknowledged the practice. 

The Report next examines U.S. law to determine whether Extraordinary Renditions are, or could be, authorized by existing law or covert directives. After systematically considering the bases of authority for transfers of individuals by U.S. officials and the limits to that authority, the Report concludes that no publicly available statute, regulation, executive finding, directive or other action exists to authorize Extraordinary Rendition. Given the clear intent of Congress, expressed through legislation aimed at upholding U.S. obligations against torture and complicity in such abuse, and White House policy condemning torture, any purported authority to carry out Extraordinary Renditions would be an unauthorized derogation from U.S. law.  

The Report then discusses the international law applicable to Extraordinary Rendition, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; the Geneva Conventions of 1949; and the Refugee Convention of 1951. The Report demonstrates that all of these treaties contain provisions preventing some aspects, or the entire practice, of Extraordinary Rendition. This Section concludes with a consideration of some guiding principles from international law on criminal liability that may be relevant in efforts to prosecute individuals who have been involved in Extraordinary Renditions. Standards explored include those governing complicity and conspiracy, the doctrine of command responsibility, and certain justifications and defenses available under international law. The Report then turns to the use of “diplomatic assurances”– promises made by governments not to torture or mistreat individuals who are being transferred into their custody. Because these promises are made only when the circumstances indicate that an individual is at risk of torture, and because there are no procedural safeguards allowing for their transparent implementation, the Report concludes that diplomatic assurances as currently used are ineffective. 

The Report next demonstrates ways in which Extraordinary Rendition could leave the United States vulnerable to international liability under the doctrine of state responsibility. This Section explains that the U.S. government is required by international treaty law to prevent, investigate, prosecute, and punish acts amounting to Extraordinary Rendition. 

The Report concludes with a comprehensive examination of the U.S. criminal and civil statutes that are applicable to individuals involved in Extraordinary Rendition, demonstrating that such individuals may be open to criminal charges and/or civil liability for conspiracy and complicity in torture. 

By the Numbers: Findings of the Detainee Abuse and Accountability Project

PREVENTION AND CONFLICT

By the Numbers: Findings of the Detainee Abuse and Accountability Project

This briefing paper presents the preliminary conclusions of the Detainee Abuse and Accountability Project (DAA Project) based on data collected as of April 10, 2006. It also highlights a number of individual cases that illustrate various key findings.

In 2004, revelations about the abuse of detainees in U.S. custody at Abu Ghraib prison in Iraq shocked people across the world. In response, U.S. government officials condemned the conduct as illegal and assured the world that perpetrators would be held accountable. 

Two years later, it has become clear that the problem of torture and other abuse by U.S. personnel abroad was far more pervasive than the Abu Ghraib photos revealed—extending to numerous U.S. detention facilities in Afghanistan, Iraq, and at Guantánamo Bay, and including hundreds of incidents of abuse. Yet an analysis of alleged abuse cases shows that promises of transparency, investigation, and appropriate punishment for those responsible remain unfulfilled. U.S. authorities have failed to investigate many allegations, or have investigated them inadequately. And numerous personnel implicated in abuses have not been prosecuted or punished. 

In order to collect and analyze allegations of abuse of detainees in U.S. custody in Afghanistan, Iraq, and at the Guantánamo Bay detention facility, and to assess what actions, if any, the U.S. government has taken in response to credible allegations, the Center for Human Rights and Global Justice at NYU School of Law, Human Rights Watch and Human Rights First have jointly undertaken a Detainee Abuse and Accountability Project (DAA Project). 

The Project tracks abuse allegations and records investigations, disciplinary measures, or criminal prosecutions that are linked to them. This briefing paper does not discuss allegations of torture or abuse at secret U.S. detention facilities in other countries, or allegations of torture following illegal rendition or other informal transfer to other countries. It presents the Project’s preliminary conclusions based on data collected as of April 10, 2006. It also highlights a number of individual cases that illustrate various key findings. 

Enabling Torture: International Law Applicable to State Participation in the Unlawful Activities of Other States

PREVENTION AND CONFLICT

Enabling Torture: International Law Applicable to State Participation in the Unlawful Activities of Other States

This briefing paper sets out the scope of legal obligations of States concerning human rights violations perpetrated by the U.S. in its “War on Terror.” The briefing paper looks at the obligations of States that are both independent of, and in addition to, those which bind the U.S. It primarily deals with international human rights law and does not address regional or domestic arrangements.

The full nature and extent of other States’ involvement in U.S. actions in its “War on Terror” is the subject of continuing revelation and investigation, both in individual countries and within regional frameworks, such as the European Union. How this involvement violates a State’s obligations under international human rights law depends on the facts that emerge through these and future inquiries. Evidence of involvement per se will not automatically be a breach of a State’s obligations; some forms of involvement may properly be part of the State cooperation necessary to end terrorism. Involvement is prohibited when States seek assistance in using illegal means to combat terrorism. 

This briefing paper does not analyze in detail how the practices of the U.S. violate international human rights norms. This is a topic that the Center for Human Rights and Global Justice has addressed in other work. Instead, this paper looks at the obligations of States that are both independent of, and in addition to, those which bind the U.S. The Briefing Paper primarily deals with international human rights law and does not address regional or domestic arrangements. 

The Enigma of the ‘Most Serious’ Offenses

PREVENTION AND CONFLICT

The Enigma of the ‘Most Serious’ Offenses

This working paper is part of the Extrajudicial Executions Series. 

The paper deals with the International Covenant on Civil and Political Rights’ provision that ‘in countries which have not abolished the death penalty, sentences may be imposed only for the most serious crimes ….’ Situating the provision in the context of its drafting, the paper clarifies that, while its ambiguity reflected a lack of consensus regarding the particular crimes for which capital punishment was prohibited, it served as a ‘marker’ for the policy of moving toward abolition through restriction, encouraging a subsequent process of dynamic interpretation.

The paper goes on to describe how the situation as regards the scope and practice of capital punishment has changed since the provision was drafted, necessitating a constant reappraisal of the meaning that should be attached to the concept of ‘most serious crimes’.

The paper then traces the abolition of capital punishment in the United Kingdom and the part played by the failed attempt to define, within the crime of murder, a category of the ‘most serious’.

The paper concludes with a discussion of the necessity for open review, research and publication of statistics on the use of the death penalty so as to inform the public of the manifold problems of the enforcement of capital punishment within a legal structure that is seeking to embrace the concepts of the rule of law and respect for human rights.

2006. Roger Hood, Emeritus Professor of Criminology, University of Virginia School of Law; Emeritus Fellow of All Souls College; Oxford University.