Wikileaks exposes human rights violations?

Wikileaks has again disclosed thousands of confidential US military documents detailing what appear to be gross human rights violations. This time, though, the leaked documents refer to the running of the war in Iraq and the treatment of detainees and suspected insurgents there.

The documents illustrate how Iraqi security forces tortured and mistreated detainees in official and secret detention centres, apparently with US acquiescence. It has been reported that there were gruesome acts of torture perpetrated by the new Iraqi security forces against detainees, with such treatment including attacks with acid and electric drills.

Most of the documents disclosed are low-level field reports which were disclosed to superiors by field officers. In theory, these reports should have been investigated further. It appears, though, from the documents disclosed that this was rarely, if ever, done, with many of the documents bearing the comment “no further investigation”.

Both Iraq and the United States are obliged under international humanitarian law to provide certain standards of care to enemy combatants who have been captured. Common Article 3 of the Geneva Conventions provides that any person not involved in hostilities or enemy combatant who have laid down arms or, as relevant to this case, have been placed in detention “shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” It explicitly provides further prohibitions on torture and inhuman and degrading treatment stating that “the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

What has become clear from the reports leaked, and the photos attached thereto, is that these provisions were not respected by the Iraqi security forces and the United State’s failure to act to prevent these disgraceful practices also raised the question of its liability through acquiescence. These should both be considered grave violations of the provisions of the law of war.

Furthermore, international human rights law dictates that torture and inhuman and degrading treatment are prohibited in all circumstances. That is, the prohibition on torture is non-derogable. Even in times of war or state of emergency threatening the life of a nation, torture remains prohibited. There are no exceptions to this rule.

Manfred Nowak, the United Nations Special Rapporteur on Torture, has reiterated this view and noted that a State may also be liable not only for the actions of torture carried by its own agents, but also for the acts of torture committed by other States, in deportation cases, for example. This revolves around the idea that we should not only refrain from acts of torture but also ensure that we are not responsible for sending someone to be tortured. A State will be liable for a violation of the right to freedom from torture, if it knowingly hands over an individual to a State where said individual is likely to suffer from torture or inhuman or degrading treatment or punishment.

It logically follows, then, that US forces should not have been turning Iraqi prisoners over to Iraqi forces if they were aware of the acts of torture being perpetrated by the Iraqi forces. And, it is clear from the Wikileaks documents that it was indeed the case that they knew. The United States should not be able to escape liability here and, given that the US is a party to the Geneva Conventions, it should at the very minimum be prosecuting those individuals within the US military who were involved and who knew about these practices and ignored them. The same must be said for the Iraqi government, which must be extremely diligent now in investigating these instances and prosecuting to the fullest extent possible, those individuals involved.

Let me be perfectly clear, these acts of torture are war crimes and fit neatly within the definition of “war crimes” contained in the Rome Statute of the International Criminal Court. Further, the International Committee of the Red Cross noted that the following acts are, among others, fall within the definition of war crimes:

  • wilful killing of a protected person (e.g. prisoners of war and civilians);
  • torture or inhuman treatment; and
  • wilfully causing great suffering to, or serious injury to the body or health of, a protected person.

Unfortunately, the United States is not a party to the Rome Statute of the International Criminal Court (the “ICC”) and, therefore, not subject directly to its jurisdiction. The Security Council of the United Nations does have powers, under the Rome Statute, to refer matters to the ICC, which would, in theory, mean that individuals from the US could find themselves before the ICC for war crimes committed in Iraq. It is, however, extremely unlikely that the United States would allow the Security Council to refer such matters to the ICC and, given that it has a veto power in the Security Council, it is not outside its power to ensure that this never happens.


One Response to “Wikileaks exposes human rights violations?”
  1. DeVitus says:

    It is not surprising that underneath the shell of appearance of prioritization of human rights and the growth of the influence (including political) of this legal body, widespread and systematic violations of human rights are perpetrated by those exact states that gave the birth to the notion of individual rights in the first place. “Sacrifice one for the good of many” is exactly a way of thinking that the human rights discourse is trying to eliminate.

    The attitude of an international community towards the exposure of the information by WikiLeaks is on its own outrageous. With the latest news about the arrest of Julian Assange on the ground of allegations of rape mixed with reports of mere unprotected sex taking place, the placement of WikiLeaks creator on the international most wanted list based merely on suspicions of sexual offence(s) uncovers the evidence that the States have a lot to hide from the public, and that the international community is not only working on protecting individual rights around the globe, but is also cooperating in concealing the violations of the latter.

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