The UN Human Rights Committee, established under the ICCPR to oversee its implementation, has affirmed that the right to an effective remedy can never be derogated from, even during times of national emergency. International law requires that remedies not only be available in law, but accessible and effective in practice. Victims are entitled to equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. Full and effective reparation includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Other treaties dealing with specific human rights contain additional provisions regarding accountability and remedy. For instance, the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which the USA ratified in 1994, does not permit the granting to individuals of immunity from criminal responsibility for torture on the basis of official status, and also precludes justifications such as “exceptional circumstances” or superior orders. It also requires that each State Party “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible”, a right the UN Committee against Torture has said applies equally to other forms of cruel, inhuman or degrading treatment or punishment.
The majority had noted that the administration adopted new policies on the state secrets privilege which came into effect on 1 October 2009.3Under these policies, the US Department of Justice will not defend the state secrets doctrine in certain circumstances, including where it is being invoked in order to “conceal violations of the law” or to “prevent embarrassment to a person, organization, or agency of the United States government”. The Ninth Circuit majority concluded that the government was “not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies”.
Here the majority was straying into understatement. Those polices were not just controversial, but unlawful. In the CIA program, detainees were subjected to the crimes under international law of enforced disappearance and torture. This much is known from information that the government itself has disclosed, even though it continues to resist further disclosures of information it has classified Top Secret.
Whether or not the state secrets privilege has been invoked in order toconceal violations of the law, that has been the effectof the invocation and the judiciary’s upholding of it.
Amnesty International reiterates that as well as facilitating remedy and accountability through an approach to litigation that respects international human rights, the US administration should ensure that an independent commission of inquiry is set up to investigate all aspects of the USA’s detention and interrogation policies and practices since 11 September 2001. If and when the inquiry concludes that particular conduct may have amounted to crimes under national or international law not known to be already under investigation, the information gathered should be referred to the appropriate federal authorities with a view to possible prosecution of the individual or individuals concerned. The establishment and operation of the commission, however, must not be used to block or delay the prosecution of any individuals against whom there is already sufficient evidence of wrongdoing.