27 Detention, torture and rights of prisoners of war: part II

Rohini Sen

Table of Contents

1. Learning Outcomes

2.Introduction

3. Guantanamo Bay

3.1 Torture Techniques: Physical and Psychological

3.2 Legal Issues

4. Abu Ghraib

4.1 Torture: Physical and Psychological

4.2 Legal Issues

1. Learning Objective

• To give students an overview of the necessity of media in a conflict;
• By the end of the module, students will have an understanding of international human rights law on media.

2. Introduction

The prohibition of torture is an absolute jus cogens norm, recognised by all constitutions, laws and treaties of the International Community and from which no derogation is allowed.1 The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1985, states that torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” The Geneva Convention, 1949, and their Additional Protocols prohibits humiliation and degradation of prisoner-of-war. Torture is considered to be a crime against humanity, committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (Rome Statute, Article 7) and states that perpetrators may be persecuted for war crimes under the Rome Statute, 2002.2 Prohibition torture and inhume treatment are included in several international agreements ratified by U.S. as well as the municipal laws of U.S.

3. Guantanamo Bay

The Guantanamo Bay detention camp is a United States military prison established in 2002. Detainees captured in the War on Terror, most of them from Afghanistan and much smaller numbers later from Iraq, the Horn of Africa and South Asia were transported to the prison. The lawyers of the U.S. Office of Legal Counsel of the Department of Justice argued that the Third Geneva Convention did not apply to members of Al Qaeda or the Taliban captured in the war in Afghanistan or other location. Ensuring U.S. Supreme Court decisions since 2004 have determined otherwise and that the courts have jurisdiction: it ruled in Hamdan v. Rumsfeld on 29 June 2006, that detainees were entitled to the minimal protections listed under Common Article 3 of the Geneva Conventions. Following this, on 7 July 2006, the Department of Defense issued an internal memo stating that prisoners would, in the future, be entitled to protection under Common Article 3.The camp held the detainees for interrogation. Since January 2002, 779 men have been brought to Guantanamo.The aim was to be able to interrogate them for an indefinite period and far away from civilian courts. Both the camps, in Guantanamo Bay and Abu Ghraib used similar techniques for interrogations.

3.1 Torture Techniques: Physical and Psychological

Operating under varying rules and with different gals and guidelines, the institution repeatedly clashed over their disparate views of acceptable and effective interrogation techniques. New ‘enhanced’ programs were designed for interrogations which were officially approved. Psychological abuse such as light and sound manipulation, solitary confinement, exposure and temperature extremes, sleep deprivation, threatened with transfer to another country for torture were the common techniques used. Based on official U.S. government statements that have not been independently verified, in 2003 alone, there were 350 acts of ”self-harm”, including 120 “hanging gestures”. Some of the prisoners have reported of being confined in solitary for long periods, even in excess of one year. A prisoner was made to live under fluorescent light for three years causing pain to his eyes and dizziness. Cells were often kept in extremely hot or cold. Physical abuse included short-shackling, stress positions and immediate reaction force. Even doctors and psychologists have been actively involved in abusing the prisoners for interrogations. Additional, Behavioural Science Consultation Team was involved. Medical care was withheld or unnecessary medical procedures were carried out on the prisoner. Alarming number of sexual abuse incidences were carried out by the interrogators. The prisoners were sexual degraded and humiliated. Sexual provocation by female interrogators was carried out in exchange for information. The prisoners were subjected to religious humiliations and cultural abuses too. Their religious practices were interfered by their guards. For instance, the prisoners were frequently shaved off. The guards degraded the prisoners and treated them inhumanely. For instance, the soldiers urinated on and burnt the prisoners with cigarettes. The prisoners were also made to walk bare foot on broken glass. Hot liquid was poured on their heads and electric shocks were given to the prisoners. They were routinely beaten up the guards at night. A legal memo of August, 2002, opined that abuse does not rise to the level of torture under U.S. law unless such abuse inflicts pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Mental torture required, in this legally dubious view, “suffering not just at the moment of infliction but…lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder”. By late 2002, different branches of official/military began to question these methods of interrogations and expressed their concerns. Despite consistent concerns, the head authorities issued isolation for a month at a time, twenty-four hour interrogation and exploitation of ‘individual phobias to induce stress’. Interrogators were also instructed to deprive the prisoners of light and auditory stimuli, forcibly strip them naked, hood them and subject them to “stress positions”.

3.2 Legal Issues

The detainees of Guantanamo were labelled as “unlawful combatants” by U.S. Defence. The Geneva Convention provides protection to all persons captured in an international armed conflict, even if they are not entitled to POW status. A series of legal memoranda, arguing that the Geneva Conventions did not apply to detainees from the Afghanistan war, was written in late 2001 and early 2002 by the Justice Department which helped to build the framework for circumventing international law restraints on prisoner interrogation. This was in pursuit to provide ‘flexibility’ to U.S. in the war against terrorism. The characterizations of detainees were modified as per the need of an administrative purpose. Although, the commander of DoD Criminal Investigative Task Force was directed to prohibit the agents from participating in interrogations that employed ‘any questionable techniques…and to which withdraw from any environment or action which he/she feels is inappropriate’. The U.S. military has openly acknowledged that many men at Guantanamo did not belong there.  Several U.S. departments and agencies, in recent years, have investigated the reports of detainee abuse. Apart from criminal investigation, several detainee interviews were also held. However, no one has been prosecuted for their involvement in the abuse at Guantanamo. On December 30, 2005, Detainee Treatment Act came into force has an outcome from widespread criticism at home and abroad. The Act was the first legislation to concern with the prisoners of Guantanamo. The UN report concluded that the U.S. should close ‘Guantanamo detention facilities without further delay’. The UN investigators in their report concluded that the certain acts carried out by the U.S. in Guantanamo amounted to torture.

On 7 January 2011, President Obama signed the 2011 Defense Authorization Bill, which, in part, placed restrictions on the transfer of Guantanamo prisoners to the mainland or foreign countries, thus impeding the closure of the facility.  In February 2011, U.S. Secretary of Defense Robert Gates said that Guantanamo Bay was unlikely to be closed, due to the opposition in the Congress. Congress particularly opposed moving prisoners to facilities in the United States for detention or trial. As of May 2014, 149 detainees remain at Guantanamo.

4. Abu Ghraib

A series of human rights violation was committed against the detainees in the Abu Ghraib prison in Iraq by U.S. Army and Central Intelligence Agency during the war in Iraq, 2003. The leaked photographs illustrated the twisted reality of detention centres in Iraq and the inhumanity that had crept into everyday operations and interactions with the Iraqi “other.” Reports of mistreatment of Abu Ghraib prisoners have primarily described the behaviour of guards, instructed to “soften up the prisoners” pending interrogation, rather than abuse during interrogations themselves. The so-called “Torture Memos,” prepared by the Justice Department and approved by the White House Legal Counsel, consist of policy advice regarding the avoidance of prosecution in introducing interrogation tactics tantamount to torture. On November 14, 2006, legal proceedings invoking universal jurisdiction were begun in Germany against Donald Rumsfeld, Alberto Gonzales, John Yoo, George Tenet and others for their alleged involvement in prisoner abuse under the command responsibility. In June 2014, the US court of appeals in Richmond, Virginia, found that a 18th-century law known as the Alien Tort Statute, allowed non-US citizens access to US courts for violations of “the law of nations or a treaty of the United States”. This would enable abused Iraqis to file suit against contractor CACI International. Employees of CACI International are being accused of encouraging torture and abuse as well as taking part in it as the four Iraqi’s contend that they were “repeatedly shot in the head with a taser gun”, “beaten on the genitals with a stick”, and forced to watch the “rape [of] a female detainee”, during their time at the prison.

4.1 Torture: Physical and Psychological

The images of detainees in Abu Ghraib show naked Iraqi detainees in human pyramids or on dog leashes, with U.S. soldiers standing next to them, smiling as if posing for a photograph to include in their family albums back home. On their initial arrest, the detainees were not always informed why they were arrested. They were detained in the cold cells. During interrogations, they were hooded and cuffed and sometimes stripped naked. They were beaten and even shocked by an electric baton. Few of them died because of the pain. In its February 2004 report, the ICRC found that “methods of physical and psychological coercion were used by the military intelligence systematically to gain confessions and extract information”. The methods cited by the ICRC included: hooding to disorient and prevent detainees from breathing freely; being forced to remain for prolonged periods in painful stress positions; being attached repeatedly over several days, for several hours each time to the bars of cell doors naked or in positions causing physical pain; being held naked in dark cells for several days and paraded naked, sometimes hooded or with women’s underwear over their heads; sleep, food, and water deprivation; prolonged exposure while hooded to the sun during the hottest time of day. The classified investigative military report of Maj. Gen. Antonio Taguba reported and catalogued the abuses such as punching, slapping and kicking detainees; jumping on their naked feet; videotaping and photographing naked male and female detainees; forcibly arranging detainees in various sexually explicit positions for photographing; forcing groups of male detainees to masturbate themselves while being photographed and videotaped; arranging naked detainees in a pile and then jumping on them; positioning a naked detainee on a box, with a sandbag on his head, and attaching wires to his fingers, toes and penis to simulate electric torture; writing “I am a Rapist” (sic) on the leg of a detainee alleged to have forcibly raped a 15-year-old fellow detainee, and then photographing him naked; placing a dog chain or strap around a naked detainee’s neck and having a female soldier pose with him for a picture; a male military police guard having sex with a female detainee (the report did not term the abuse as rape although the act was forcible); breaking chemical lights and pouring the phosphoric liquid on detainees; threatening detainees with a loaded 9-mm pistol; pouring cold water on naked detainees; beating detainees with a broom handle and a chair; threatening male detainees with rape; allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell; sodomizing a detainee with a chemical light and perhaps a broom stick; using military working dogs (without muzzles) to frighten and intimidate detainees with threats of attack, and in at least one case biting and severely injuring a detainee; forcing detainees to remove their clothing and keeping them naked for several days at a time; forcing naked male detainees to wear women’s underwear; taking pictures of dead Iraqi detainees.The cruelties of the detention also lead some detainees to commit suicide. On 12 January 2005, The New York Times reported on further testimony from Abu Ghraib detainees: urinating on detainees, pounding wounded limbs with metal batons, pouring phosphoric acid on detainees, and tying ropes to the detainees’ legs or penises and dragging them across the floor.

4.2 Legal Issues

The Bush administration did not initially acknowledge the abuses at Abu Ghraib. The U.S. armed forces have devoted considerable energy over the years to making the Geneva Conventions fully operational by military personnel in the field yet, in 2004, U.S. Defense Secretary stated that the Geneva Conventions “did not apply precisely” in Iraq but were “basic rules” for handling prisoners. The abuses were not a result of breaking of rules by the individual soldiers but that of decisions by the Administration trying to cast aside and ignore the rules. The States through their legal memos advocated that the long-standing legal restrictions on interrogation and treatment of detainees were ‘obsolete’ in pursuit to win the war against terrorism. They sought re-define the rights of detainees in an armed conflict. They began to employ coercive methods designed to “soften up” detainees for interrogation. This technique inflicted pain and humiliation to the detainees. The administration officials had turned a blind eye to the reports of detainees until the photographs of the abuses at Abu Ghraib were published.

The international organizations, such as International Committee of the Red Cross and Human Rights Watch, considered the acts to be a gross violation of the International Humanitarian Law with respect to treatment of the detainees. Irrespective of their status as prisoner-of-war, the detainees are provided with protection of basic human rights under the international laws. Such protections include the right to be free from coercive interrogation, to receive a fair trial if charged with a criminal offense, and, in the case of detained civilians, to be able to appeal periodically the security rationale for continued detention. In 2005, the United Nation stated the practice by U.S. was unlawful and not mandated by UN Resolutions. The US Supreme Court, In Hamdan v. Rumsfeld (2006), ruled that Common Article Three of the Geneva Conventions applied to all detainees in the War on Terror. In 2013, Associated Press stated that Engility Holdings, of Chantilly, Virginia, paid $5.28 million in a settlement to 71 former inmates held at Abu Ghraib and other U.S. run detention sites between 2003 and 2007.

Reference

• Rachel Joyce, ‘Detainee Abuse at Abu Ghraib Prison: Sadism or Scapegoating? The Institutional and Discursive Support for Torture in the War on Terror’, Jindal Journal of International Affairs XI-XIII (2013), Vol 3, Issue 1 http://www.jsia.edu.in/JJIA/PDF/Detainee%20Abuse%20at%20Abu%20Ghraib%20Prison%2 0-%20Rachel%20Joyce.pdf
• Laurel Fletcher & Eric Stover, ‘Guantanamo and Its Aftermath: U.S. Detention and Interrogation Practices and their Impact on Former Detainees’, University of California, Berkeley, School of Law, 2008 https://www.law.berkeley.edu/files/IHRLC/Guantanamo_and_Its_Aftermath.pdf
• ‘Report on Torture and Cruel, Inhuman, and Degrading Treatment of Prisoners ofGuantanamo Bay, Cuba’, Centre for Constitutional Rights, 2006 https://ccrjustice.org/files/Report_ReportOnTorture.pdf
• ‘The Road to Abu Ghraib’, Human Rights Watch, 2004 http://www.hrw.org/sites/default/files/reports/usa0604.pdf
• Allen Keller, ‘Torture in Abu Ghraib’ https://www.press.jhu.edu/journals/perspectives_in_biology_and_medicine/PBM_Sa mple.pdf