Investigation, Prosecution, Remedy: Accountability For Human Rights Violations In The War On Terror


Investigation, Prosecution, Remedy: Accountability For Human Rights Violations In The War On Terror

The inadequacy of US investigations, their lack of independence, evidence of the pattern of unlawful detention and interrogation policies and practices that has emerged and continues to emerge, the refusal by the USA to apply international human rights law and standards to the treatment of detainees or to the investigation of abuses, and the evidence of high-level authorization of and complicity in internationally unlawful conduct, all demand that a commission of inquiry be established in addition to criminal investigations as described above.

What sort of commission of inquiry?

In the USA, commissions of inquiry can be established in a number of ways. These include commissions established by legislation (passed by Congress and signed by President), by executive order, and by congressional resolution. Amnesty International's position is that any such commission, regardless of which route to establishment is chosen, must meet the criteria listed below. The commission should:

  • Be established under clearly and publicly defined terms of reference, including its objectives, composition, scope of inquiry, powers, time frame of operation, and reporting mechanisms, that maximize its credibility both domestically and internationally;

  • Be established under procedures that guarantee its independence, impartiality and competence;

  • Be adequately resourced, in terms of material and human resources, and have transparent funding;

  • Enjoy operational, administrative and financial autonomy within the transparent budgetary constraints;

  • Be composed of credible experts, who will be seen to be independent, impartial and objective, who command public confidence, whose expertise includes international human rights and humanitarian law, and whose terms as commissioners are properly guaranteed;

  • Establish a vetting process to ensure that each commission member has the highest levels of recognized impartiality, independence and personal integrity. To this end, no one should be appointed to the commission who is or has been closely associated with any person or entity, such as a military unit or government department, potentially implicated in human rights violations under the commission's scope of inquiry. Senior commission staff should undergo similar vetting procedures;

  • Be able to investigate all agencies and levels of government, and private contractors, with a view to establishing the role of all actors in any violations of human rights and/or humanitarian law;

  • Have access to inspect any places that are relevant to its investigations;

  • Apply international standards, both in relation to the definitions of what is lawful and unlawful, and in relation to the conduct of the investigation;

  • Seek the advice of international experts, such as the Special Procedures of the UN Human Rights Council;

  • Have the necessary clearance to access all relevant classified information;

  • Be able to seek the assistance of law enforcement authorities, including for witness protection;

  • Have the necessary power to compel the appearance of witnesses, and to be prepared to use this subpoena power whenever necessary;

  • Be able to provide the necessary protection for whistle-blowers;

  • Be open to victims and survivors to testify voluntarily;

  • Respect confidentiality of victims and their relatives, and provide the necessary resources to facilitate their testimony and minimize its personal impact;

  • Facilitate the testimony of current detainees or prisoners, and to promote treatment of such individuals that complies with international law and standards;

  • Safeguard evidence for later use in the administration of justice;