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

Action on individual cases

Any time it may take to remove the potential obstacles described above must not prevent the government from immediately taking specific actions on individual investigations and prosecutions. These include the following measures:

  • Effective and impartial investigations, criminal or otherwise, should be promptly commenced into every instance where there is reasonable ground to believe an act of torture or other ill-treatment, unlawful detention, or enforced disappearance, has been committed by or on behalf of the USA.

  • Every act potentially constituting a crime under international law should be subject to an investigation capable of leading to a criminal prosecution.

  • Prosecution should not be limited to those who directly perpetrated the violations. Individuals in positions of responsibility who either knew or consciously disregarded information that indicated that subordinates were committing violations, yet failed to take reasonable measures to prevent or report it, should also be included, as well as anyone who authorized or was potentially complicit or participated in the acts, including by knowingly providing assistance.

  • Prosecutions should not be limited to members of the US forces, but also should include private contractors and foreign agents where evidence of criminal wrongdoing by such individuals is revealed.

  • Prosecutions must themselves meet international standards of fairness.

  • Any complainant and witnesses must be protected against ill-treatment or intimidation as a consequence of the complaint or any evidence given.26

  • Victims and their legal representatives should have access to information relevant to the investigation, as well as access to each other. If the results of the investigation are not to be revealed through prosecution of the case, the findings should be made public by other means.

  • Claims of confidentiality on the basis of national security or other similar interests that might prevent successful investigation and prosecution of a person for human rights violations, including in cases of torture or other ill-treatment and enforced disappearance, should be precluded.

  • Prosecutors should seek penalties which take into account the grave nature of the offences.27 They should not seek the death penalty in any case.

  • Where investigations or prosecutions are undertaken by foreign authorities into torture or other ill-treatment or enforced disappearance, the USA must assist the proceedings, including by supplying all necessary evidence at its disposal and extraditing any alleged perpetrators that it is unwilling or unable itself to prosecute.28

Amnesty International believes that justice is best served by prosecuting war crimes, crimes against humanity, and other grave violations of international law, such as torture and enforced disappearance, in independent and impartial civilian courts, rather than military tribunals. Military tribunals should in any event never be used in respect of anyone who is not a member of the armed forces of a state, accused of crimes in an international armed conflict.