Issue Brief: Getting to the Truth through an Independent Commission of Inquiry

Since 2004, Amnesty International has called for accountability for unlawful acts committed during the “war on terror,” in the interests of truth, to seek justice and to uphold the rule of law. We believe that accountability can best be achieved through the use of two mechanisms—domestic U.S. courts, which can address individual complaints, and an independent commission of inquiry, which can best conduct a comprehensive and wide-ranging review of the program of abusive policies adopted in the “war on terror.” 

 

The violations committed by U.S. personnel in Iraq, Afghanistan, Guantánamo and elsewhere have sadly been many and varied. They have included forced disappearance, cruel, inhuman and degrading treatment (in some cases resulting in death in custody), prolonged incommunicado detention as well as other forms of arbitrary and indefinite detention, secret international transfers of detainees without due process (“extraordinary rendition”), and acts amounting, by Attorney-General Eric Holder’s own admission, to torture. Official reviews of detention policies have been piecemeal, often by design lacking the independence or the mandate to reach up the chain of command or outside the military. Such reviews have failed to interview victims, have ignored widely accepted international standards, and many of their findings remain classified as secret. Much is still uninvestigated. Much is still obscured from public view. Accountability is still largely absent, as is any remedy for the victims of these abuses.

 

The U.S.A. is required by international law to respect and ensure human rights, to thoroughly investigate every violation of those rights, and to bring perpetrators to justice, no matter their level of office or former level of office. Victims of human rights violations have the right under international law to access to remedy and reparation. In addition, there is a collective and individual right to the truth about violations. The United Nations, among others, has formally recognized “the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights”, referring in part to “the right of victims of gross violations of human rights and serious violations of international humanitarian law, and their families and society as a whole, to know the truth regarding such violations, to the fullest extent practicable, in particular, the identity of the perpetrators, the causes and facts of such violations, and the circumstances under which they occurred”.

 

If the United States is to demonstrate that it is now genuinely committed to human rights and the rule of law, Amnesty International believes that the new administration and Congress must ensure that truth and accountability are no longer buried under laws or policies that exploit or facilitate secrecy or impunity. Without observance of the right to know and, by implication, the right to the truth, the right to justice and the right to reparation there can be no effective remedy against the pernicious effects of impunity. As the independent non-governmental International Center for Transitional Justice has said, a holistic approach is necessary following a period of widespread human rights violations:

 

“Without any truth-telling or reparation efforts, for example, punishing a small number of perpetrators can be viewed as a form of political revenge. Truth-telling, in isolation from efforts to punish abusers and to make institutional reforms, can be viewed as nothing more than words. Reparations that are not linked to prosecutions or truth-telling may be perceived as ‘blood money’ – an attempt to buy the silence or acquiescence of victims. Similarly, reforming institutions without any attempt to satisfy victims’ legitimate expectations of justice, truth and reparation, is not only ineffective from the standpoint of accountability, but unlikely to succeed in its own terms.”

 

Rejection of impunity

Rejecting impunity is crucial not only for dealing with past human rights violations, but also for preventing recurrences. The Obama administration must ensure that investigations and prosecutions in individual cases are initiated while simultaneously working to remove legal or practical obstacles to criminal responsibility. The obligation to take such steps derives in part from the U.S.A’s obligations under international law and in part from domestic legal statutes. The U.S.A has been party to the International Covenant on Civil and Political Rights (ICCPR) since 1992 and to the United Nations Convention against Torture (UNCAT) since 1994. The UNCAT expressly precludes defenses such as “exceptional circumstances”, superior orders, or public authority from ever being capable of being invoked in justification of acts of torture. States may not relieve those responsible for such violations from personal responsibility through general amnesties, legal immunities or indemnities or other similar measures. Impediments such as immunities arising from official statutes, defenses of obedience to superior orders or unreasonably short periods of statutory limitation must accordingly be removed. Similar obligations are found under the Geneva Conventions and under customary international law.

 

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.

 

Redress and remedy for victims of human rights violations

International law requires the U.S.A to provide the victims of violations with remedies that are not only theoretically available in law, but are actually 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. Restitution seeks to restore the victim to the situation he or she was in before the violation. Compensation should cover any economically assessable damage, and rehabilitation should include medical and psychological care as well as legal and social services. Guarantees of non-repetition could include, among other things, reviewing and reforming laws that contribute to or allow the violations to take place, and holding abusers to account so that a culture of impunity is not allowed to develop. To ensure that the right to remedy and redress is effective as required by international law, any invocation of state secrets privilege that might prevent a victim of torture or other ill-treatment, arbitrary detention, unfair trial, enforced disappearance, or other human rights violations from establishing the violation and obtaining an effective remedy, must be precluded.

 

Accountability: Part of the whole, part of a new start

There is not a single fix that will bring the U.S.A’s actions on counterterrorism into compliance with international law. The violations in the “war on terror” have been many and varied, and the government has exploited a long-standing reluctance of the U.S.A to commit itself fully to international law, including in relation to recognizing the full range of its international obligations with respect to torture or other cruel, inhuman or degrading treatment or punishment. The question of accountability and remedy for violations in the “war on terror” must therefore be part of a new commitment by the U.S.A to international law. We have argued that a holistic approach is necessary following a period of widespread human rights violations. Punishment can be viewed as political revenge if it is not accompanied by truth-telling and reparation. Attempts at seeking the truth-telling without rule of law and institutional reform may be seen as words without action. Reparations without investigations and revelation of the truth may be seen as an attempt to buy silence. History teaches us that the reform of institutions undertaken in the absence of justice, truth and reparation, is most unlikely to succeed.

 

Amnesty International’s Recommendations

 

Amnesty International calls on President Barack Obama and Members of Congress to establish or support a non-partisan, independent commission of distinguished Americans to examine, and provide a comprehensive report on, policies and actions related to the detention, treatment, and transfer of detainees in the so-called "war on terror," and the consequences of those actions, and to make recommendations for future policy in this area.

 

In the U.S.A, commissions of inquiry can be established in a number of ways. These include commissions established by legislation (passed by Congress and signed by President), by executive order, and by congressional resolution. Amnesty International’s position is that any such commission, regardless of which route to establishment is chosen, must meet the criteria listed below.

 

The commission should:

 

Be established under clearly and publicly defined terms of reference, including its objectives, composition, scope of inquiry, powers, time frame of operation, and reporting mechanisms, that maximize its credibility both domestically and internationally;

 

Be established under procedures that guarantee its independence, impartiality and competence;

 

Be adequately resourced, in terms of material and human resources, and have transparent funding;

 

Enjoy operational, administrative and financial autonomy within the transparent budgetary constraints;

 

Be composed of credible experts, who will be seen to be independent, impartial and objective, who command public confidence, whose expertise includes international human rights and humanitarian law, and whose terms as commissioners are properly guaranteed;

 

Establish a vetting process to ensure that each commission member has the highest levels of recognized impartiality, independence and personal integrity. Senior commission staff should undergo similar vetting procedures;

 

Be able to investigate all agencies and levels of government, and private contractors, with a view to establishing the role of all actors in any violations of human rights and/or humanitarian law;

 

Have access to inspect any places that are relevant to its investigations;

 

Apply international standards, both in relation to the definitions of what is lawful and unlawful, and in relation to the conduct of the investigation;

 

Have the necessary clearance to access all relevant classified information;

 

Be able to seek the assistance of law enforcement authorities, including for witness protection;

 

Have the necessary power to compel the appearance of witnesses, and to be prepared to use this subpoena power whenever necessary;

 

Be able to provide the necessary protection for whistle-blowers;

 

Be open to victims and survivors to testify voluntarily;

 

Respect confidentiality of victims and their relatives, and provide the necessary resources to facilitate their testimony and minimize its personal impact;

 

Facilitate the testimony of current detainees or prisoners, and to promote treatment of such individuals that complies with international law and standards;

 

Safeguard evidence for later use in the administration of justice;

 

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 defense, 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 impede any criminal proceedings in the case of any alleged perpetrator against whom there are existing charges 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.