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. 

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. 

PREVENTION AND CONFLICT

Fate and Whereabouts Unknown: Detainees in the ‘War on Terror’

This Briefing Paper presents factual summaries of individuals who may be in secret detention sites. The 28 stories of individuals who may have been “disappeared” by the U.S. government are drawn from media accounts, human rights reports, and in some cases, interviews with legal representatives. While the level of certainty about the status of these individuals varies, the facts in each case are sufficient to indicate that each may have been a victim of an enforced disappearance by the United States.

PREVENTION AND CONFLICT

Beyond Guantanamo: Transfers to Torture One Year after Rasul v. Bush

This report discusses the transfers, how they could be a convenient tool for avoiding U.S. courts and circumventing the rights of detainees while at the same time allowing the Administration to maintain access to the individuals and to any information they may possess. The authors argue that although the types of transfer seem to change over time, one thing remains constant: detainees are not being given the opportunity to challenge their transfer on the grounds that they fear torture. The U.S. is therefore violating its international and domestic law obligation to protect against transfers to torture.

On June 28, 2004, the U.S. Supreme Court ruled in Rasul v. Bush that U.S. courts have jurisdiction to consider claims by foreign nationals captured abroad in connection with the global “War on Terror” and incarcerated at Guatnánamo Bay. While the federal courts work to determine the rights of these detainees, the Guantánamo Bay prison has itself become the focus of intense criticism by a wide variety of leaders and organizations, with prominent figures such as Former President Jimmy Carter calling for the prison to be shut down. Despite the criticisms, however, the Bush Administration continues to employ strategies that appear to be aimed at keeping “War on Terror” detainees outside the ambit of the U.S. legal system, including through renditions, extraordinary renditions, reverse renditions, and transfers to secret detention facilities in foreign countries. 

Though the types of transfer seem to change over time, one thing remains constant: detainees are not being given the opportunity to challenge their transfer on the grounds that they fear torture. The U.S. is therefore violating its international and domestic law obligation to protect against transfers to torture. 

As a general matter, each of the various transfers can fall into one or more legal categories, defined for the purposes of this paper as (i) legal transfer, (ii) extra-legal transfer, and (iii) illegal transfer. A legal transfer is a transfer that is clearly authorized under U.S. law and contains an established, regulated method for detainees to challenge their transfer on the grounds that they fear torture. An extra-legal transfer is a transfer that appears to be authorized under U.S. law but contains no method for the detainee to effectively challenge transfer on the grounds of fear of torture. Finally, an illegal transfer is a transfer that is clearly unauthorized under U.S. law. 

As the courts address the scope of the rights due to those detained in Guantánamo Bay, and as pressure to close the Guantánamo Bay facility mounts, the use of extra-legal and illegal transfers is likely to increase even further. It is therefore imperative that criticisms of Guantánamo Bay and calls for the facility’s closure be accompanied by an equally strong condemnation of the use transfers designed to circumvent the rule of law and to undermine the principles of justice that form the cornerstone of the U.S. legal system. 

June 28, 2005. This report was researched and written by Angelina Fisher and Margaret Satterthwaite.