KUALA LUMPUR, 10 May 2012 (TSR) – The fourth day of the trial began with the submission of the amicus curiae who submitted that international law changed after World War II and again after 9/11. He said that Torture is not a crime under international law and customary international law and jus cogens is no longer applicable.
He submitted that things changed after 9/11 as there was no ‘army’ to fight and this resulted in a change in the idea of warfare. This resulted in a situation that required the need for the use of methods that were different from those prior to the attack. The need to obtain information to prevent any further attacks resulted in the use of methods of interrogation that were aggressive. He stressed that the rights of the majority justified the actions taken by the US.
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He went on to say that the witness Moazzam Begg had in the early nineties visited a training camp in Afghanistan, which was not revealed in his statement. This casts a doubt on the witness impartiality.
The prosecution replied that the amicus curiae’s argument is faulty in law at the very core and has to be rejected. Legal precedent is clear. The prohibition against torture is absolute. There can be no derogation from this rule. It is accepted as a jus cogens – a peremptory norm of international law from which states cannot derogate: Ex parte Pinochet (No 3).
The prosecution replied that the 9/11 attacks had changed nothing in the application of international law. The Torture Convention 1984 and Geneva Convention are laws applicable to the US. The Army Field Manual 34-52 relating to the handling of prisoners during interrogation and confinement incorporate Geneva Convention constraints.
The US Supreme Court in Hamdan v Rumsfeld (2006) 548 U.S. 557, ruled that these justifications are wrong. All except 2 of the 8 judges confirmed that Common Article 3 applied to all Guantanamo detainees. Whether they were Taliban or al-Qaeda did not make any difference.
The witnesses were tortured and abused. And this is not disputed. Testimony showed; Abbas 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 when being transported by helicopter. All the witnesses have residual injuries till today.
Moazzam Begg had in a civil suit last year received a settlement from the British government for his unlawful detention and torture. This dispenses any doubt that may have been lingering that he had the remotest links to al-Qaeda.
The Tribunal asked counsels to submit on the admissibility of video evidence. Prosecution had witnesses but was unable to facilitate the tribunal in visiting the prisons in the condition that they were in at the time of the torture and abuse. The introduction of video evidence is in the interest of justice to show images of the prisons and the actual torture scenes by excluding the narrative of the video. It is an illustration and treated as secondary evidence.
The defence was earlier also submitted a documentary called Sicko directed by Michael Moore. The documentary highlights the lack of medical care for the rescue workers who volunteered after 9/11. He claimed that the detained at the Guantanamo Bay received better medical care.
The Tribunal decided to exclude the video evidence, as it is highly prejudicial in the absence of the maker of the video being called to adduce the video. The Tribunal also ruled unanimously that there is a prima facie case made out by the prosecution.
The amicus did not have any further submission to make. And as such, the Tribunal adjourned the proceedings to the following day.