Tuesday, October 26, 2004

Disgusting, but scarcely surprising

The reach of Guantanamo is slowly extending.

In what sounds like the stuff of conspiracy theories – except it has been confirmed by the US Government – the CIA has been quietly moving some prisoners out of Iraq to secret bases for interrogation, beyond the reach of US law or - allegedly - the Geneva Conventions.

Here is the apparent reasoning: if you were not part of the uniformed Iraqi armed forces during the invasion, and are not an Iraqi national, you are not protected by the Geneva Conventions or the law of belligerent occupation, and can be moved beyond the reach of law and interrogated.

Up to a very limited point regarding the power to transfer people out Iraq, this may not be entirely wrong. But the Bush administration is deliberately seeking to circumvent any legal regulation of its interrogation practices. Of those captured in Iraq who are not Iraqi nationals (protected by the international law of occupation from being removed from Iraq – if one ignores the removal of Hussien) who have been “transferred” out of the country the New York Times has said:

“Another possibility is that they were transferred to the secret American-run sites around the world that have been used since the Sept. 11 terror attacks to house the highest ranking Qaeda detainees, including Khalid Shaikh Mohammed, who is accused of being the mastermind of the attacks.

Such transfers have been used by American officials in the past three years in part to subject suspected members of Al Qaeda and the Taliban to interrogation practices harsher than those permitted under the Geneva Conventions or under American law. American officials have defended such practices, including a technique in which a prisoner is made to believe that he will drown, as essential to extract information that may be useful in preventing terrorist attacks.”

Presumably, like Guantanamo Bay, a number of these US bases are presumably beyond the reach of the US Supreme Court, and are probably not subject to local law by the terms of the treaties governing the status of foreign armed forces.

Despite my somewhat hasty conclusion the last time I wrote about Guantanamo, there is (by implication or omission) such a category as “non-privileged combatant”, though the term is not directly found in the Geneva Conventions. However, such a person is still entitled certain minimum protections (under the provisions of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War).

Further, they are entitled to a determination of their status by a competent tribunal (Article 5 of the Third Geneva Convention), not by what sounds a secretive administrative procedure (“We’ve decided you belong to Al Qaeda, and the Presidential determination says at all AQ members are non-privileged combatants – sorry, go straight to Guantanamo Bay, do not pass go, do not expect visits from Red Cross inspectors …”).

And of course, no state official has the right to engage in interrogation practices that breach the general international prohibition on torture. Under the Convention Against Torture (“CAT”), torture is where “severe pain or suffering, whether physical or mental, intentionally inflicted on a person for such purposes as obtaining from him … information or a confession …” (CAT, Article 1).

In case it might be thought that this prohibition doesn’t apply to the US, the CAT is one of the few major international human rights instruments to which the US is actually a party. That is, as a matter of international law, it applies to US officials no matter where in the world they are.

And this is the country Australia and the UK have lined up behind as leaders of the free world.

The depth of my disgust is just beyond expression at present.

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