International Law, Torture and Accountability

GENEVA -- The decision this week by the United States’ top legal officer, Attorney General Eric Holder, to appoint a federal prosecutor to examine abuse of prisoners held by the Central Intelligence Agency (CIA) is a small step in a much bigger task that challenges all people and governments around the world: How to apply the rules of war in a reasonable and effective manner?

The decision to examine the CIA’s conduct came around the same time that the US government announced that it would continue sending prisoners to third countries but would monitor their detention to be sure they were not tortured. That last little safeguard against torture carries no serious credibility, and it is widely expected that the United States would continue to send prisoners to other countries where they would be roughed up and abused in an attempt to extract useful information from them in the ‘war on terror’.

The United States also just announced that it would give the International Committee of the Red Cross (ICRC) the names of individuals it had detained abroad, but would not allow access to them by the ICRC.

Ironically, I read about the US Justice Department’s decision to probe CIA past behavior while I was in Geneva attending the semi-annual meetings of the international advisory board of the ICRC -- the neutral and independent body tasked with ensuring that the dictates of international humanitarian law are observed by all. The ICRC and the world celebrate this month the 60th anniversary of the four Geneva Conventions that, with their protocols, provide the backbone of international humanitarian law (IHL), whose task is to protect civilians and people in need in times of armed conflict.

The American-led ‘war on terror’ has provided a new challenge to those whose task it is to monitor international compliance with the Geneva Conventions and other pertinent laws that seek to protect civilians. The remarkable thing about the Geneva Conventions is that they have been ratified by every country in the world. This provides a critical platform of consensus that is often otherwise missing in attempts to secure state compliance with a legal norm or form of conduct.

The head of the ICRC’s legal division, Knut Dormann, says in a typically understated Swiss way that, “I think it’s fair to say that what happened on September 11, 2001 and its aftermath put IHL to one of its toughest tests so far.”

One of the issues that should be clarified, he suggests, is the existing reference in IHL to conditions for detention of suspects and prisoners, and also the procedural safeguards to which detainees should be entitled.

The technical issues of the applicability of law will continue to be addressed at the international level as well as by individual countries -- such as the United States is now doing by investigating the CIA’s conduct on detainees. The man tapped to explore the CIA’s treatment of prisoners, John Durham, has already been investigating whether the CIA should be subjected to a full criminal investigation for the destruction of some CIA interrogation videotapes. Holder responded to criticism that investigating the CIA like this is irresponsible or uncalled for, by saying: “As attorney general, my duty is to examine the facts and to follow the law.”

He added that he also acted because of a recommendation by the Justice Department’s ethics office, and the contents of a 2004 report by the CIA inspector general on the agency’s interrogations, which was released this week. The report provides many details about various torture and abuse techniques that were used in the CIA’s secret prisons around the world, which President Obama has ordered closed. Presumably, such torture will continue to take place in the third country prisons where the United States still sends detainees.

The critical issue in the first instance here is whether legal action will be used to hold accountable those persons or institutions that misbehaved in this domain. National law might be used in some cases to try individual torturers or criminals. In the most severe cases, the world now can investigate and punish war crimes through international tribunals -- such as those established for Rwanda, Sierra Leone and former Yugoslavia -- and the International Criminal Court.

The more difficult task would be to hold governments accountable for their conduct, and this is where legal niceties run up against the brute force of political power. The American government is taking small but significant steps in examining the conduct of its own CIA in recent years, releasing some classified reports, and closing its secret CIA prisons abroad. But there seems to be no possible means of holding the United States and other invading governments accountable for the consequences and costs of their foreign policies, including the wars in Iraq and Afghanistan. So, we should expect lawlessness and terror to remain a global problem for years to come. Legal protection must be truly indivisible and universally applicable if it is to have any force at all.