1. Introduction
In the quest for combating terrorism, the U.S. initiated the Global War on Terror (GWOT), deploying U.S. military forces in both Afghanistan and Iraq. In the years after the terrorist attacks on 11 September 2001, the U.S. led a headstrong coalition of western military forces in the Middle East. In 2003 the Iraqi regime under Saddam Hussein collapsed and U.S. forces gained power over the notorious prison complex Abu Ghraib outside Baghdad (Hersh 2004). The prison complex became the main center for gathering intelligence about the enemy, and herein the prisoners were mainly Iraqis, moreover most of them were civilians, many of whom had been arrested during random military sweeps, attacks etc. in the Abu Ghraib prison there were a commonly known distinction between three different categories of prisoners being; common criminals, security detainees suspected of crimes against the U.S. led coalition, and then a small number of ‘high value’ leaders of the insurgency against the coalition forces (Hersh 2004). In this essay focus will be on the U.S. usage of its ‘counter resistance techniques’ when interrogating detainees in the Abu Ghraib prison, and how these techniques are just another word for torture and ill-treatment of the detainees in the pursuit for gathering useful intelligence for the coalition. The evidence of these torture techniques actually taking place, emphasis will be put on the report written by Major General Antonio M. Taguba in 2003, wherein he provides actual examples of how the U.S. army prison failed as an institution in relation to International Human Rights Law. Between October and December 2003, Taguba proved that there were numerous instances of ‘sadistic blatant, and wanton criminal abuses’ taking place at Abu Ghraib. These violations were perpetrated by soldiers of the U.S. Military Police Company (MPC) and the American intelligence community (Hersh 2004). The Taguba report shows the result of collective wrongdoings and the failure of army leadership at the highest levels, as I in this essay argue that it can be traced all the way to the Executive branch and the White House led by President George W. Bush and Vice-president Dick Cheney.
The essay is divided into different parts; where I am starting out by outlining IHRL, in order to better understand its role and how international treaties and conventions apply to International Law. Furthermore, I attempt to navigate through the different IHRL treaties and conventions prohibiting torture of mankind, and to show how the formulation of these have changed along the years, starting with the Universal Declaration of Human Rights from 1948 and ending with the Convention against Torture from 1987. With these treaties and conventions in mind, I will then introduce the case of torture and abuse of Iraqi prisoners at Abu Ghraib. In this part focus will be on how the wrongdoings of U.S. Military Police Officers (MPO) are in violation of IHRL and how they were dealt with by the U.S. government once the abuses became known to the American public and to the entire world, as the actions had to have repercussions. In addition to these alleged repercussions, I will in the final part of the essay briefly shed light to how the MPOs who violated human rights at many counts got sentenced afterwards.
2. Understanding the role and nature of international Human Rights Law (IHRL)
In this essay the importance of understanding how international treaties and conventions constitute international law is crucial. As will become quite clear later, I am dealing with the case of the U.S. torture scandal in the Abu Ghraib Prison in Iraq and the atrocities happening there in 2003. however, if we are to get the full grasp of the actions of the MPOs and how the U.S executive branch managed to maneuver around IHRL, we need to know what kind of legislative power the IHRL treaties and conventions actually have when it comes to domestic law. According to Martin Dixon (2013:28), the international conventions and treaties could simply be said to be the only way that states consciously can create international law. This might be a definition which is way too simplified, however it creates a better understanding of the role of international treaties in IHRL. The specific character of a treaty can vary a great deal, as of which it can both be bilateral or multilateral, and the judicial power in IHRL surely depends on this, meaning that the more state-parties consigning to a treaty, the more judicial power it can have over IHRL. A treaty is usually the outcome of a long and troublesome negotiation process, however when a treaty is agreed upon, a committed state-party is bound by the articles and provisions within it. A treaty can cover every aspect of international relations, although in this essay focus will exclusively be on treaties protecting human rights. With treaties states can create certain and specific obligations, and because they are the result of a deliberate act, the treaties are more likely to be respected and complied with (Dixon 2013:28). To cite the writings of Martin Dixon (2013:28) “International treaties … are now the most important source of international law and this is likely to remain so given the continuing efforts of the International Law Commission to codify customary law in treaty form”.
To be a legitimate source of law, a treaty is usually governed by a number of principles of which I will only deal with a few. Firstly, treaties are considered to be voluntary, and in that sense no state can be bound by a treaty without having given its consent to be bound, this means that only state-parties to a respective treaty can be bound by its terms (Dixon 2013:28). However, there is no rule without an exception, and in the case of treaties there are some very exceptional ones that are ergo omnes in international law, which are effective against the whole world, although these are more than just very rare, and furthermore, the treaties and conventions of IHRL do not fall under this category. A second principle governing treaties is that once a state has committed to a treaty and signified its consent, then the state is bound by its terms regarding all other state-parties to that treaty (Dixon 2013:28). In relation to this it is important to clarify that a state-party is not bound to a treaty when it comes to dealing with another state, which is not a party to that treaty. In other words, a state cannot be held to be accountable and to comply with treaty rules of the opposing state is not a part of that same treaty. In addition to this, a primary rule within this principle is that a state cannot be bound by a treaty to which it is not a party, not even if its obligations under customary law are identical to those contained in treaty form (Dixon 2013:29). Thirdly, if a treaty however codifies existing customary law, then the specific obligations in that treaty may be binding on all states because these states are bound by the same obligations as expressed in the treaty (Dixon 2013:29).
So how can we understand the legality of international treaties in a nutshell? By the principles mentioned above, for a non-law student such as myself, understanding the treaties becomes quite confusing. However, Martin Dixon (2013:30) manages to formulate an understandable distinction; if we remember that only state-parties are bound by the treaty itself and that it is only when a treaty reflects customary law that non-parties may have obligations, then international treaties become way simpler.
2.1. Human rights and International Law
Taking International Law and applying it in relation to human rights is a tricky task, as there are many rules and exceptions to those rules. However, international law should be seen as a system of rules governing the relations between states. International law has advanced considerably since the creating of the United Nations (UN) in 1945, and the development of rules and principles governing the rights and obligations of individuals has become quite prominent (Dixon 2013:354). As specified in the previous section, the greater part of the rules and principles of international law are derived from treaty or custom, and the same thing is actually true for the law of human rights as well. The binding force of human rights obligations must ultimately rest in either treaty or custom, however, the inspiration for these obligations typically lie within ethics, morality, justice or simply in the regard for preserving the dignity of mankind (Dixon 2013:354). The nature of human rights can be said to vary according to the political, economic or social orientation of the state/group of states, however, there are some human rights that never varies. These are called universal rights and they include; the right to life, the prohibition of torture, and the prohibition of genocide (Dixon 2013:355). As I am dealing with a comprehensive case about torture and abuse of Iraqi prisoners by U.S. MPOs in the military prison Abu Ghraib, I am evidently concentrating on the universal right regarding the prohibition of torture, and in relation to this it becomes highly relevant to introduce the aspect of jus cogens and how it applies to the universal rights. These universal rights are the overriding principles of international law, and marking them as being jus cogens, no derogation from these principles is ever permitted (Dixon 2013:355).
As to the actual jurisdiction of the law of human rights, we cannot claim that it is overriding all other laws both international and domestic. It is important to view it with critical eyes as it is important to remember that even though the specific purpose of the law of human rights is to ensure that individuals are protected from the abuse of states and governments, in reality, however, the effective protection of individuals in relation to the violation of their human rights is the exception rather than the rule (Dixon 2013:356). Some critics say that this is a defect in the enforcement of human rights obligations and that this is evidence of the ineffectiveness of human rights law. This specific critique will come to show later in the essay, when dealing with how the U.S. Executive managed to maneuver around IHRL and apply domestic legislation in relation to justifying the intelligence gathering methods used in Iraq. However, before reaching the actual case, the next section will briefly deal with the different international human rights treaties and conventions and how these govern IHRL. By disclosing the different relevant Articles in the treaties and conventions, I aim to clarify how IHRL should be understood in relation to the case of torture, abuse and inhuman treatment in Abu Ghraib.
3. Conventions and Treaties – Protecting International Human Rights (IHR) against torture and abuse
The prohibition against the use of torture, abuse, inhuman and degrading treatment of humans is a fundamental aspect of humanitarian law. Torture is universally condemned and thereby no country publicly supports the use of such. A previously mentioned, the prohibition of torture is rather well established under customary law as jus cogens; and hereby it has the highest standing possible in customary law, meaning that it supersedes all other treaties and customary laws; with the exception of laws which are jus cogens as well (HRW 2004:6). One of the most important elements of IHRL is the duty to protect the life, health and safety of civilians and other noncombatants, including captured and unarmed soldiers, and that the torture of such persons is absolutely forbidden (HRW 2004:6). The first remarkable landmark against torture was introduced to IHRL with the Universal Declaration of Human Rights, where it is made clear from Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (UNGA 1948). The Declaration proclaims that all humans should have equal rights of freedom, justice and peace, and that the articles within it should be common standards of achievement for all peoples and all nations. Additionally, which acts characterizes the use of torture? There should be a common understanding and shared meaning of this, and this is not explicit from the Declaration from 1948. The third Geneva Convention relative to the treatment of prisoners of war from 1949 however offers more explicit characterizations of what constitutes torture. Especially in Articles 13 and 17 it comes to show what kinds of behavior of the detaining power which are not legal. “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest” (Article 13, ICRC 1949:87).
In 1979, the International Covenant on Civil and Political Rights from 1966 (ICCPR) entered into force. It was made in accordance with the Charter of the United Nations, and in Article 7 of the Covenant it is clearly stated that; “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation” (UNGA 1966:175). The Covenant is a legally binding treaty and the intention of it is to provide a framework for the protection of civil and political rights which are regarded as essential for the dignity and liberty of humans (Dixon 2013:36).
In the Covenant from 1966, further meaning has been added to the original claim from 1948, however we still need a clear definition of which acts and wrongdoings actually constitute the use of torture. Hereby introducing a final relevant Convention from 1987; the Convention against torture and other cruel, inhuman or degrading treatment or punishment. The foundation of this Convention rests firmly on Articles prohibiting torture from both the Universal Declaration of Human Rights and the ICCPR, however it also offers more specific definitions of the acts constituting acts of torture. According to Article 1; “The term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (OHCHR 1987:113-114).
As becomes evident, the common international understanding of what constitutes acts of torture has changed considerably since 1948. The articles governing the use of torture have become more specific, and thereby also harder to bypass when maneuvering through IHRL. By introducing the relevant Articles from the respective treaties and conventions prohibiting the use of torture, my aim has been to exemplify how IHRL actually increased its measures to prohibit nation-states to employ torture strategies, especially in relation to gathering intelligence in times of war. In the following section, I will introduce the case of the U.S. and its “counter resistance techniques” and “intelligence gathering techniques” in the military prison Abu Ghraib in Iraq, and how they managed to keep their use of torture a secret from the public for a short period of time by discarding of IHRL and only applying domestic legislations and policies to justify their actions.
4. The U.S. “counter resistance techniques” in the Abu Ghraib Prison
Third Geneva Convention of 1949
“Article 17: No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind” (ICRC 1949:88).
Taking Article 17 into account alongside the previously mentioned Articles regarding the prohibition of torture in the above section, it would be quite clear how prisoners of war ought to be treated whilst under captivity. However, the Taguba report from 2003 showed that several IHRL Articles were violated by U.S. MPOs at Abu Ghraib in the fall of 2003. As Major General Antonio Taguba points out, there have been “numerous incidents of sadistic, blatant and wanton criminal abuses” that have been inflicted on several detainees (Brody 2004:26). The Taguba report is very detailed when it comes to the specific counts of abuses detected in the prison and in the following paragraph I will briefly explain the most horrific incidents, however I will not go into the very specifics of the abuses but only explain the different kinds of means of torture used. The relevance of this will become quite clear once these torture methods are held up against the Articles from the previous section. Then it becomes apparent what the U.S. Executive branch actually approved as appropriate ‘counter resistance techniques’ and methods of gathering intelligence.
What initially instigated the relevance for the Taguba report, were the pictures taken by the MPOs themselves, which became known to the public through leaks to the media. These pictures showed American MPOs in uniforms posing with naked Iraqi prisoners. These prisoners were placed in the most degrading and humiliating positions as they were stuffed in pyramids on top of each other whilst being naked and hooded. In most of the pictures the MPOs are smiling and posing next to the naked prisoners while pointing and giving the camera thumbs up. Shortly after the pictures were published the Taguba report was filed where it became evident that there had in fact been numerous incidents of kicking, punching, and other physical abuse, coerced masturbation, sexual humiliation, forced nudity, and the use of unmuzzled dogs as weapons of intimidation (Amann 2005:2092). More specifically the methods of torture used were; hooding used to prevent people from seeing and to disorient them, and also to limit their breathing; Beatings with hard objects such as firearms, slapping, kicking and punching; parading the prisoners naked around the prison deprived of their liberty, and sometimes also hooded; Exposed while hooded to loud music or noise, and prolonged exposure to the sun over several hours whilst being naked and therefore causing the detainees to get severe sunburns etc.; and being forced to remain for prolonged periods of time in stressful positions (Danner 2004:9-11). The Taguba report amounts to an excessive study of the collective wrongdoing and failure of Army leadership at the highest levels. As Hersh swiftly points out both Army regulations and the Geneva Conventions were routinely violated when “interrogating” and extracting information from the prisoners (Hersh 2004). According to Human Rights Watch (Brody 2004:27) the Taguba report provided additional evidence of the U.S. interrogation methods at Abu Ghraib being in violation of international human rights and humanitarian law.
What should now be crystal clear is that I aim to portray the violations of the U.S. MPOs as acts of torture, thereby violating several human rights laws, treaties and conventions. However, how did it get this far, and why weren’t there any federal American authorities trying to prevent these acts of torture from happening. Here focus should be drawn to the fact that not all states post-9/11have had the same interpretation of what is okay when it comes to extracting information from prisoners of war. In relation to this, the former Counsel to President Bush, Alberto R. Gonzales was in fact revealed to have advised Bush that war against terrorism was a new kind of war, which created the need for the ability to quickly obtain information from captured terrorists and insurgents (Amann 2005:2094). Interpreting the words of Counsel Gonzales, the acts of torture committed by the MPOs should be seen as legal means of gathering intelligence in order to combat the global threat of terrorism. However, one mans opinion did not cause the actual doings and it does not justify the actions of the MPOs, especially since IHRL was still violated, whether the U.S. definition of torture did not match the ones of the internationally recognized treaties and conventions.
The following section will deal with the part where the U.S. Executive branch failed to comply with IHRL, or at least managed to adopt a very free interpretation of how the use of interrogative methods were to be seen, and to what degree inhuman treatment of prisoners were to pass as legal in the U.S. military prisons, Abu Ghraib in particular.
4.1. U.S. maneuvering between domestic law and IHRL
The scandalous pictures combined with the Taguba report opened up a floodgate of leaks of Government reports and Justice Department memoranda, wherein international and domestic law was analyzed in order to determine the legality of the coercive interrogation methods. In 2002 Counsel Gonzales had prepared a Justice Department memorandum which was also leaked to the press in 2003. In this memorandum Gonzales maintained that having investigated both domestic and international law, the Justice Department was still convinced that certain acts, even though they might be said to be of a cruel, inhuman or degrading kind, still might not produce pain and suffering of the requisite intensity, as to which the coercive interrogation techniques would violate U.S. law or IHRL (Amann 2005:2094). In the memorandum, physical suffering would not constitute torture unless it was ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death’. As can be interpreted from the leaked memorandum, the U.S. Justice Department had adopted a quite loose interpretation of what should be seen to constitute the use of torture, and in relation to this, the Executive branch would then nearly have carte blanche when it came to order MPOs to use coercive and abusive methods when interrogating prisoners. The interrogation techniques were authorized by the Executive branch and they were labelled; ‘counter resistance techniques’ (Amann 2005:2095).
What is important to understand is that the U.S. operates within a crowded legal landscape, where the absolute dominant is the national law, however room must also be made for the promises that the U.S. has made at the international level. The American Constitution considers treaties a parts of national law, however these international agreements often only seek to promote compliance between member-states that ranges from merely submitting report to monitoring committees to the far more complex arbitration before international bodies (Amann 2005:2118).
What I want to understand in this part of the essay is how it was possible for the U.S. to adopt policies of torture and why the U.S. legal system failed to prevent it. Well before the terrorist attacks on 9/11 and the inauguration of George W. Bush, the U.S. actually chose to loosen the binding force of its international human rights agreements, a choice that has had severe consequences following the events of 9/11 and the U.S. declaring a Global War on Terror. By marginalizing of IHRL made it far easier for the officials of the Bush Administration to institutionalize the use of abusive treatment of prisoners (Mayerfeld 2007:94). Coercive interrogation techniques were authorized at the highest levels of the U.S. administration, going as far up as to the President himself. Attorneys to the White House and the Justice Department legally certified the decisions and conveyed the orders to the Pentagon and the Central Intelligence Agency (CIA) (Mayerfeld 2007:90). Later the decisions to implement coercive interrogation techniques were communicated down the ranks to the prison guards, the MPOs and the interrogators at the military prisons.
The MPO-team that were held accountable for these wrongdoings were led by Major General Geoffrey D. Miller, and it is exemplified in the Taguba report that Miller’s team deemed it essential that the prison guards should ‘be actively engaged in setting the conditions for successful exploitation of the detainees’ (Amann 2005:2093). In the aftermath of the terrorist attacks on 9/11, the U.S. aimed to strike back at the terrorists by capturing thousands of Afghani and Iraqi prisoners. the capturing of these prisoners gave rise to the U.S. Executive ‘policy of detention’ and furthermore the ‘counter resistance strategies’ aimed at gathering intelligence for the coalition forces in the GWOT (Amann 2005:2088).