KUALA LUMPUR, 9 May 2012 (TSR) – The third day of the Kuala Lumpur war crimes tribunal hearing saw the prosecution present its submission to establish that the accused parties are indeed guilty as charged for the Crime of Torture and Crimes Against Humanity.
Crime of Torture and War Crimes against former U.S. President George W. Bush and his associates namely Richard Cheney, former U.S. Vice President, Donald Rumsfeld, former Defence Secretary, Alberto Gonzales, then Counsel to President Bush, David Addington, then General Counsel to the Vice-President, William Haynes II, then General Counsel to Secretary of Defense, Jay Bybee, then Assistant Attorney General, and John Choon Yoo, former Deputy Assistant Attorney-General.
The Tribunal will adjudicate and evaluate the evidence presented on facts and law as in any court of law. The judges of the Tribunal must be satisfied that the charge is proven beyond reasonable doubt and deliver a reasoned judgement. The verdict and the names of the persons found guilty will be entered in the Commission’s Register of War Criminals and publicised worldwide.
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In the last two days, three witnesses namely Abbas Abid, Moazzam Begg and Jameelah Hameedi gave their testimony of the tortures they had faced during their incarceration. Two additional Statutory Declarations (Ali Shalal and Rhuhel Ahmed) were read out and submitted to the tribunal.
The witnesses were taken prisoners and held in prisons in Afghanistan (Bagram), in Iraq (Abu Gharib, Baghdad International Airport) and two of them namely Moazzam Begg and Rhuhel Ahmed were transported to Guantanamo Bay.
The prosecution submitted that it didn’t matter where the location of the detentions were, the techniques used to torture the prisoners were brutal, remained constant and were ‘migrated’ from one location to other rather seamlessly.
According to the prosecution, the testimony of all the witnesses shows a sustained perpetration of brutal, barbaric, cruel and dehumanizing course of conduct against them. These acts of crimes were applied cumulatively to inflict the worst possible pain and suffering.
These acts of crime included:
a. Hooding for incredibly long hours;
b. Short shackling where the hands and legs of a detainee are tied together, for prolonged periods of time, up to 7-8 hours;
c. Shackling of the feet, body and hands for prolonged periods;
d. Chaining in physically impossible postures, including to the floor of a cell, for prolonged periods;
e. Shackling and chaining for long periods such as to cause severe and prolonged physical pain;
f. Depriving sleep;
g. Blasting loud noises continuously for prolonged periods;
h. Beating continuously causing severe pain;
i. Confining in solitary and (often while hooded) for prolonged periods;
j. Subjecting to extreme and physically unbearable conditions (extreme cold or hot, humid, devoid of sunlight);
k. Overcrowding prisoners in small cells;
l. Disallowing normal bodily functions in decent conditions (not allowing to go to toilet, have a bath, defection in full view of others, abruptly ending prisoners when carrying out such functions);
m. Withholding food and/or drinks;
n. Where food was provided, providing atrocious and terrible food;
o. Humiliating: including by women officers;
p. Using dogs to threaten and intimidate;
q. Using electrocution, including of sensitive areas such as genitals;
r. Threatening to harm family members;
s. Simulating torture of family members;
t. Threatening to shoot with gun pointed at the head;
u. Securing confessions through coercion and inducements;
v. Denying medical treatment;
w. Dispensing hallucinating drugs;
x. Suggesting suicide.
Testimony showed that Abbas Abid had his fingernails removed by pliers. Ali Shalal was attached with bare electrical wires and electrocuted and hung from the wall. Moazzam Begg was beaten and put in solitary confinement. Jameelah was almost nude and humiliated, used as a human shield whilst being transported by helicopter. All these witnesses have residual injuries till today.
After the testimony of the witnesses, the court was shown footage of the prisons, of prisoners being tortured and the conditions described by the witnesses in the documentary Taxi to the Dark Side. This documentary also highlighted the cavalier attitude of some of the accused of their actions.
The prosecution stated that the treatment meted out to the prisoners disclosed torture and inhumane conduct. These acts amount to:
a. Torture under the Torture Convention 1984; as well as
b. Cruel, inhumane and degrading treatment in violation of Geneva Convention III and IV, 1949; and Common Article III to the Geneva Conventions.
According to the Torture Convention 1984 of which the US is a party, the prohibition against torture is absolute. Torture by public officials is “without doubt … regarded by customary international law as an international crime” per Lord Hope, Ex-Pinochet. Nobody is immune from its reach – not even heads of states as the Pinochet case decided.
The Torture Convention defines ‘torture’ as ‘the intentional infliction of severe pain or suffering, whether physical or mental, by or with the consent or acquiescence of a public official’.
Through legal contrivance the accused lawyers, in justifying the use of torture, the US redefined the meaning of torture to ‘actual organ failure and cause long lasting harm’.
This position was advanced in a memorandum by the Attorney General’s office to President George W. Bush, dated August 1 2002 and was given by the Assistant Attorney General Jay Bybee.
The Prosecution submitted that the testimonies of the witnesses made it clear that the acts inflicted such as pain and harm could only be described as torture. This means that even if the threshold is raised in the manner suggested by Bush and his legal advisors, the acts were in violation of the Torture Convention.
Under the Geneva Conventions, which promise a minimum of humane treatment in “armed conflict not of an international character” to all civilians and non-combatants. Geneva Convention III protects all persons – whether they are captured or surrendered, whether in uniform or not.
Liability may also arise under the Rome Statute of the International Criminal Court, 1998 (ICC). Although the US is not a party (though a signatory), Afghanistan is. It became a party on 10 February 2003. The ICC can exercise jurisdiction over any person who is a national of a state party, or who has committed a crime on the territory of a state party: article 12.2.
The manuals (Army Field Manual 34-52: Intelligence Interrogation (1992) referred to colloquially as FM 34-52) of the US FBI and the Army relating to the handling of prisoners during interrogation and confinement incorporate Geneva Convention constraints. From about September 2001, there was a distinct move to seek ways to avoid the obligations under the Torture Convention as well as the Geneva Convention III.
There was a proliferation of legal opinions to the President and the Defence Secretary that the Geneva Conventions were inapplicable to the prisoners. These were acted upon Executive orders and other directives issued that were incompatible with the Geneva Convention III and the Torture Convention.
The prosecution submitted that the inevitable conclusion is that the US Executive branch, as represented by the President, the Vice-President and the Defence Secretary, intended by a conscious and wilful act not to treat the prisoners in accordance with the Geneva Conventions.
The prosecution stated that the totality of the evidence established that President Bush issued executive orders to commit war crimes. As Commander-In-Chief of the US military leading the conduct of the war in Afghanistan and Iraq, he intended these orders to be acted on. In this capacity, he received reports from the battlefields as well as other sources that pointed clearly to these violations. He did nothing to stop these war crimes from being committed. The fact that his executive orders were based on legal opinions is an issue that does not absolve him. Indeed, it makes those giving advice equally liable for war crimes.
President Bush issued a memorandum on February 7 2002 declaring that al-Qaeda prisoners were outside the protection of the Geneva Conventions as they were ‘enemy combatants’ not prisoners of war. This was a prelude to subjecting them to torture and inhumane acts.
He also detained the prisoners in Guantanamo Bay at the Southern tip of Cuba with the aim of taking them out of the jurisdiction of any legal system – “a legal black hole”.
Donald Rumsfeld, the then Defence Secretary, issued a Memorandum for Chairman of the Joint Chiefs of Staff dated 19 January 2002 approving the ‘advice’ given to him by legal counsel John Yoo and Robert Delabunty by a Memorandum dated 9 January 2002 that the CIA was free to ignore the Geneva Conventions as they did not apply to suspected Al Qaeda and Taliban detainees.
Rumsfeld denied knowledge of the abuses. Rumsfeld knew or should have known of the abuses and torture at Iraq and Afghanistan. He and his department were repeatedly warned of the abuse of detainees.
Rumsfeld established the ‘aggressive’ torture techniques programme and authorised these techniques, created an environment that promoted torture and inhumane acts by sending an unequivocal signal demanding ‘more actionable’ intelligence, and failed to prevent or punish acts of torture and other violations.
The Prosecution further submitted that Dick Cheney was the Vice President of the US at all material times when the complainants were subjected to violations of the Torture Convention and Geneva Convention III. It is logical to infer that he was privy to the policies and the orders issued by the president and Rumsfeld.
Cheney, for example, played a key role in opposing the amendment proposed by Senator John McCain to pass an amendment to the 2006 National Defence Authorisation Bill to prohibit “cruel, inhuman and degrading” treatment of detainees in US military custody.
Cheney had knowledge of what was going on and in particular that the orders issued by Bush and Rumsfeld were issued and acted upon. He was part of the policy makers in this regard. He plainly knew that there were violations of the Torture Convention and/or the Geneva Convention III and failed to intervene to prevent such activity.
During the afternoon session, the prosecution submitted on the liability of Alberto Gonzales, William Haynes, Dick Addington, John Yoo and Jay Bybee. The prosecution stated that these lawyers gave advice that the Geneva Conventions and the Torture Convention did not apply; and that certain interrogation techniques were permissible.
The accused (lawyers) have suggested that there is no connect between the interrogation techniques employed and the legal opinion justifying these techniques, as the latter were merely to explore the “outer limits of the legal landscape”.
Prosecution submitted that the lawyers knew that their advice was being sought to be acted upon; and in fact was acted upon. And further that the advice paved the way for the violations of international law and the Conventions. The President and the Defence Secretary are clear that they would – and did – rely upon, and act, in accordance with advice of the lawyers.
Bush nails the lie that there was no connect between the techniques employed and the legal opinion justifying these techniques. He states categorically, in his memoirs:
‘Years later … many lawmakers became fierce critics. They charged that Americans had committed unlawful torture. That was not true. I had asked the most senior legal officers in the US government to review the interrogation methods and they had assured me that they did not constitute torture. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong.’
Others who relied on these legal opinions were former CIA Director, Tenet, in his memoirs recounts that the CIA had to wait until legal opinion before they could embark on aggressive interrogation techniques.
Diane Beaver was in charge of Guantanamo acknowledges that there was never any question in her mind that Washington was closely involved as the lawyers for Rumsfeld, Bush, Cheney and the CIA visited Guantanamo before the list of the techniques was compiled. The lawyers had said they should do “whatever (was) needed to be done”,
The techniques in Guantanamo ‘migrated’ to Iraq, as the testimonies of the several complainants in this case bears out so lucidly. The report by the former Defence Secretary James Schlesinger attests to this fact.
The Nuremberg trial in the Altstotter case (Altstotter was Chief of the Civil Law and Procedure Division of the Ministry of Justice) pronounced that:
“… legal advisers who prepare legal advice that is so erroneous as to give rise to an international crime are themselves subject to the rules of international criminality”.
The Nuremberg Tribunal highlighted the fact that as a lawyer he knew of the crimes that were being committed and found him guilty of giving his name as “a jurist of note and so helped to cloak the shameful deeds…” “The cloak of the assassin was concealed beneath the robe of the jurist”.
The prosecution further submitted that the cumulative evidence establishes a joint enterprise to carry out acts that are war crimes.
The decision-makers at the highest levels – President Bush, Vice-President Cheney, Secretary of Defence Rumsfeld, aided and abetted by the lawyers and the other commanders and CIA officials – all acted in concert. Rumsfeld wanted more aggressive techniques, the lawyers advised on how this could be accomplished and provided legal arguments to circumvent the law, Bush approved, and the techniques were transmitted and applied right down the chain of command. The torture was systematically applied and became an accepted norm.
The prosecution concluded their submission by stating that they have proved beyond reasonable doubt that all the accused persons were instrumental in inflicting torture and cruel inhumane and degrading treatment that violated the Torture Convention and Geneva Convention III. These are war crimes. The lawyers advising the administration played a decisive role in subverting the system of international rules that should have protected all the detainees, a system that the US did so much to put in place after the Nazi atrocities in World War II.
The charge against the accused here is very similar to the charge for which the Nazi war criminals were convicted at the Nuremberg trials: “the charge of conscious participation in a nation-wide governmentally organized system of cruelty and injustice, in violation of the laws of war and humanity, and perpetrated in the name of law by … authority”: Alstotter case.
This is because after 9/11, all the pronouncements from the top made a conscious decision to set aside international rules constraining such treatment. A combination of factors account for this: fear, ideology and almost visceral disdain for international rules and norms. There are others who have also committed war crimes but those that have been charged are the key players. Against them there is overwhelming evidence and they bear direct responsibility for war crimes.
The court was adjourned for the day to resume tomorrow at 9am.