In this regard, 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 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.
In August 2009 Attorney General Eric Holder ordered a “preliminary review” into some aspects of some interrogations of some detainees held in the CIA’s secret detention program. However this review has been narrowly framed and has been set against a promise of immunity from prosecution for anyone who acted in good faith on legal advice in conducting interrogations. This falls far short of the scope of investigations and prosecutions required by binding legal obligations to which the USA is subject under international law, including under the explicit provisions of treaties the USA has entered into such as the Geneva Conventions and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Rejecting impunity is crucial not only for dealing with past human rights violations, but also for preventing recurrences. The US administration must ensure thatinvestigations and prosecutions in individual cases are initiated while simultaneously working to remove legal or practical or political obstacles to criminal responsibility. And access to remedy for the victims of human rights violations must no longer be blocked.
In its August 2010 report to the UN for the UPR process, the USA spoke of its “commitment to help build a world in which universal rights give strength and direction to the nations, partnerships, and institutions that can usher us towards a more perfect world, a world characterized by, as President Obama has said, ‘a just peace based on the inherent rights and dignity of every individual’.”
The example being set by the USA’s failure to meet its obligations on remedy and accountability for human rights violations in the counter-terrorism context flies in the face of such assertions.
USA: Investigation, prosecution, remedy. Accountability for human rights violations in the ‘war on terror’, December 2008, http://www.amnesty.org/en/library/info/AMR51/151/2008/en
USA: Blocked at every turn. The absence of effective remedy for counter-terrorism abuses, November 2009, http://www.amnesty.org/en/library/info/AMR51/120/2009/en