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

  • Preserve an archive of its investigations, with access provided to victims and their relatives, as well as to anyone implicated as a perpetrator for use in their defence, prosecuting authorities, and for historical research;

  • Make public its final report, which should be disseminated as widely and effectively as possible;

  • Include in its final report, recommendations for legislative and other measures to combat impunity and prevent recurrence of violations of human rights and humanitarian law.

  • In addition to meeting such criteria, there are certain things that a commission should not do. For example, the commission of inquiry must:

    • Not act as a substitute for the judiciary, or as a substitute for the authorities undertaking prompt, thorough, independent and impartial criminal investigations and ensuring that those responsible for crimes under international law are brought to justice;

    • Not be used to block or delay criminal proceedings in the case of any alleged perpetrator against whom there is already evidence of having committed crimes under international law, or against whom evidence emerges during the time period of the commission's operation;

    • Not be used to block or delay the public release of any information pursued under other means, such as Freedom of Information Act litigation, and must not be used to block or delay any separate executive, congressional or judicial oversight functions.

    Part of restoring checks and balances

    A hallmark of the USA's "war on terror" has been the pursuit by the US administration of unchecked executive power under its interpretation of the war powers of the President as Commander-in-Chief of the Armed Forces under the US Constitution. When the judiciary has intervened, the administration has sought to minimize or delay the impact of court decisions on this overarching strategy, including by resorting to secrecy. For its part, Congress has generally failed in its oversight function, and moreover has passed legislation such as the Detainee Treatment Act and the Military Commissions Act which has left the USA on the wrong side of its international obligations and more or less rubber-stamped the administration's detention regime.

    A new administration and new Congress must now work, together where necessary, to put this right. Congress must ensure rigorous oversight of the executive, and the executive must end any use of secrecy that obscures human rights violations from public scrutiny and facilitates impunity. As a part of its effort to bring the USA into compliance with international law, the government is obliged to ensure full accountability for human rights violations. This obligation, as stated above, is set out in treaties such as the ICCPR and the UNCAT to which the USA is party. Under international law, the US government cannot invoke any domestic law, or any purported obstacle created by the USA's structure of government established under its Constitution, as justification for failing to meet its international treaty obligations.29 Whether it chooses a congressional or presidential commission of inquiry, or a hybrid of both, the end result must be the same: truth, accountability, and remedy.