Shaming government arrogance into accountability
New York, June 25, 2004 - Strong civil rights lobbies here are continuing pressure on the United States government to refrain from outraging basic principles of humanitarian law in the war theatres that the US maintains abroad.

The focus is, of course, Iraq. Central to these concerns are the allegations of prisoner abuse that surfaced in the past few months. The point being made is simple. Significant overall change is needed in the patterns of detention engaged in by the US military authorities. Detainees should be held subject to the guaranteeing of their basic rights. Interrogation techniques practiced on them should not violate humanitarian law. Without this, a few individual hearings before military tribunals with regard to lower ranking members of the military conveniently cast as scapegoats will accomplish little except set the US even further beyond the norm of the community of nations.

Recent issues relating to the manner in which prisoners are held under US military command in Iraq have raised additional questions. In mid June, the U.S. military in Baghdad said that the United States will continue to detain without charge some four thousand to five thousand prisoners deemed a threat to the coalition even after the declared transfer of sovereignty on June 30.

This assertion was immediately condemned by groups such as Human Rights Watch who pointed out that international humanitarian law as exemplified in the 1949 Geneva Conventions permit detention without charge of prisoners of war and other detainees only in two contexts; in the case of an international armed conflict between governments or during an occupation. In this case however, neither of these contexts will be applicable after the end of June and consequently, practices of detention without charge by the US military will no longer be possible.

Interestingly, the reluctance of the current US administration to allow detainees being held by the US military, to pass out of its hands has many points of origin. Earlier, it was the high sounding albeit undeniably arrogant argument that American justice is second to none in the world. However, the documented instances of prisoner abuse at Abu Ghraib prison in Iraq has put paid to this assertion with a vengeance, making public a truth that was the worse kept secret for many months.

It has now been proved beyond any doubt (as conceded by a few senior administration officials themselves), that the official government policy of permitting illegal interrogation techniques was the starting point for these abuses, most notably in reference to Iraq and Afghanistan prisoners. Guantanamo Bay provided the most astonishing example in this regard.

Despite calls made by domestic courts both in the US and UK to amend these practices amidst campaigns of civic agitation by old and highly respected civil rights bodies such as the American Civil Liberties Union (ACLU) as well as Amnesty International and Human Rights Watch, the Bush administration proceeded regardless.

Internal warnings of detainee abuse also left the government undeterred, including a stern caution from the Office of the Inspector General (OIG), an agency watchdog within the US Ministry of Justice. The OIG faulted officials of the Justice Department, FBI, Immigration and the prisons for their treatment of non-citizens detained ostensibly on immigration charges but under investigation with regard to terrorism crimes. Its report found prolonged detention without charge, denial of access to legal counsel, and excessively harsh conditions of confinement with regard to the detained individuals.

Where domestic agitation failed, international pressure did not succeed either. The US was not overly disturbed by pronouncements from regional tribunals such as the Inter American Commission on Human Rights which urged the US to determine the status of prisoners held at Guantanamo Bay and afford them the rights that correspond to that status. The Abu Ghraib incidents, which are not isolated to that prison alone, were the direct result of a deliberate policy of keeping detainees beyond the bounds of international humanitarian law and condoning torture as a method of interrogation.

The stupendous manner of the abuses practiced in that prison compelled the US administration at long last, to publicly acknowledge that something was wrong. Its prevarication with regard to substantive accountability for its practices of detention however continues.

Thus, we have now a more sophisticated argument than the supremacy of American justice, put forward to justify its decision to continue detaining Iraqi prisoners without charge. Iraq, it is said, does not have the capacity to superintend the detention of its so-called insurgents or conduct their trials. But this claim is also easily defeated by questioning as to why the US does not, in the first and most obvious instance, allow responsibility in this regard to pass to the International Criminal Court? Instead, the contrary has happened; where the current administration is pressing the UN Security Council for a renewal of its 2000 and 2003 exemption of its troops from prosecution for war crimes when serving in any U.N. peacekeeping operations.

From another perspective, the practice of entering into non-surrender agreements with individual countries putting nationals of both signatories beyond the jurisdiction of the International Criminal Court (ICC) under the Rome Statute, continues. As may be remembered, Sri Lanka was one of three SAARC countries to sign such an agreement during the pendency of the previous government. Unlike protests in Thailand against a similar attempt on the basis that it offended the principle of sovereignty and should be approved by Parliament, we did not react in any way, which is, of course, not surprising given the present somnambulant state of our civil society.

The impunity with which the US continues to disregard basic human rights and humanitarian norms sets, of course, a dire precedent for other countries. Increasingly, one is beginning to hear murmurs from other governments that, what is good for the goose should also be good for the gander. This is a slippery slope of the most dangerous kind. It is heartening that the UN Committee on Torture has now called for both the US and Britain to present reports relating to prisoner abuse in their detention facilities but what the UN can do as far as the US is concerned is historically limited.

However, an international 'constituency of resistance' against powerful nations that put themselves beyond the rule of law appears to be growing in strength. In the final analysis, it is only this force that can prod the UN into action and shame administration arrogance on the part of the US into some measure of accountability.

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