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

3. Establishing an independent commission of inquiry

Since 2004, Amnesty International has been calling on the USA to establish an independent commission of inquiry into the USA's "war on terror" detention policies and practices worldwide. The commission must have the necessary scope to be able to fully investigate all such US policies, practices and facilities, including in relation to the CIA and other agencies, and including in relation to secret transfers of detainees between the USA and other countries.

Although the investigations and reviews that have been conducted to date by the USA have provided substantial information, insight and analysis, they have been piecemeal, have lacked the necessary independence from the executive, and have failed to apply international standards. Only portions of their findings have been made public, much remains un-investigated and much remains obscured in secrecy. Documents released under Freedom of Information Act litigation, and through the efforts of congressional committees in their oversight function, have provided some insights, but the use of classification means that a large proportion of even this information remains redacted (censored) from the public record.

The program of CIA detention is a case in point. It is known that detainees held in the program have been subjected to enforced disappearance, torture and other cruel, inhuman or degrading treatment. Where detainees have been held, and what conditions of confinement and interrogation techniques have been applied to them remain classified at the highest level of secrecy. Apart from several detainees whom the government has admitted to holding in the CIA program and who have been transferred to and remain in Guantánamo (and whose allegations of torture remain classified), the exact number of detainees who have been held in the program and the current fate and whereabouts of many of them remain unknown. The CIA has failed to cooperate fully in previous military investigations, and impunity for human rights violations committed as part of the CIA program, including crimes under international law such as torture and enforced disappearance, remains a hallmark of the program.

The UN Principles for the investigation of torture and other cruel, inhuman or degrading treatment set out the purposes of effective investigation and documentation. These are appropriate to investigating a range of unlawful practices, including enforced disappearance, unlawful detention and unlawful killing:

  1. Clarification of the facts and establishment and acknowledgement of individual and State responsibility for victims and their families;

  2. Identification of measures needed to prevent recurrence;

  3. Facilitation of prosecution and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.

The UN Principles also state that where the "established investigative procedures are inadequate because of insufficient expertise or suspected bias, or because of the apparent existence of a pattern of abuse or for other substantial reasons, States shall ensure that investigations are undertaken through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any suspected perpetrators and the institutions or agencies they may serve. The commission shall have the authority to obtain all information necessary to the inquiry".