Kishali Pinto-Jayawardena

(The author is a public interest lawyer and a columnist for the Sunday Times in Sri Lanka. The article was originally appeared in the July 2
issue of Jana Sammathaya, a weekly e-newsletter on Sri Lankan folk issues run by the Asian Human Rights Commission.)

S hould detainees held as "enemy combatants" on the shores of the United States or in foreign bases such as Guantanamo Bay be afforded basic rights, including access to an attorney and the right to challenge their detention in court? The answer to this query seems astonishingly simple and resoundingly in the positive. Yet, for years, this most fundamental of questions has been in limbo in the United States; the first and one of the most poignant victims of the "war on terror" waged with impunity by the Bush administration.

This cloud of uncertainty was dispensed to some extent by rulings by the U. S. Supreme Court in three cases that deal with the rights of U. S. detainees held as "enemy combatants" and foreign detainees at Guantanamo Bay on June 28.

In one of the cases involving a U. S. born detainee of Saudi origin, who had been detained without access to court after being suspected of having Taliban links, the Supreme Court in a majority ruling of eight to one, affirmed his right of access to an attorney and to challenge his detention in
court. 

Writing the majority opinion, Justice Sandra Day O'Connor acknowledged the power of Congress to give the president authority to detain citizens in the war under "very limited circumstances". However, she asserted a vital qualification to this authority. Due process demanded that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral
decision-maker.

The Supreme Court rulings will come as additional -and very welcome support -for civil rights lobby groups within the United States itself who are urging the current U. S. administration to refrain from outraging basic principles of humanitarian law in the war theatres that the United States maintains abroad.

Prisoners in Iraq

While the cases did not concern prisoners held at the now notorious Abu Ghraib prison, the general outrage manifested in the United States over the inhumane prisoner abuse in the past few months in Iraq formed a significant background to the judicial rulings. There is no doubt that the opinions
expressed by the Supreme Court will buttress the raising of additional questions relating to detention of prisoners after the transfer of sovereignty to Iraq on June 30.

Earlier, the U. S. military in Baghdad said that the United States would continue to detain without charge some 4,000 to 5,000 prisoners deemed a threat to the coalition even after the transfer of sovereignty. 

Responding to this claim, groups such as Human Rights Watch pointed out that international humanitarian law as exemplified in the 1949 Geneva Conventions permit detention without charge of prisoners of war and other detainees only in two contexts: in the case of an international armed conflict between governments, or during an occupation. 

In the case of Iraq, however, neither of these contexts will be applicable after the end of June. Consequently, practices of detention without charge by the U. S. military will no longer be possible. 

Abuse in Abu Ghraib Prison 

Interestingly, the reluctance of the current U. S. administration to allow detainees being held by the U. S. military to pass out of its hands has many points of origin. Earlier, it was the high sounding albeit undeniably arrogant argument that American justice is second to none in the world. However, the documented instances of prisoner abuse at Abu Ghraib prison in Iraq has put paid to this assertion with a vengeance, making public a truth that was the worse kept secret for many months. 

It has now been proved beyond any doubt (as conceded by a few senior administration officials themselves) that the official government policy of permitting illegal interrogation techniques was the starting point for these abuses, most notably in reference to Iraq and Afghanistan prisoners. Guantanamo Bay provided the most astonishing example in this regard. 

Despite campaigns of civic agitation by old and highly respected civil rights bodies, such as the American Civil Liberties Union, as well as Amnesty International and Human Rights Watch, the Bush administration proceeded regardless.

Internal warnings of detainee abuse also left the government undeterred, including a stern caution from the Office of the Inspector General, an agency watchdog within the U. S. Ministry of Justice. The Office of the Inspector General faulted officials of the Justice Department, the Federal Bureau of
Investigation, the immigration and the prisons for their treatment of non-citizens detained ostensibly on immigration charges but under investigation with regard to terrorism crimes. Its report found prolonged detention without charge, denial of access to legal counsel and excessively harsh conditions of confinement with regard to the detained individuals. 

Where domestic agitation failed, international pressure did not succeed either. The United States was not overly disturbed by pronouncements from regional tribunals such as the Inter American Commission on Human Rights, which urged the United States to determine the status of prisoners held at Guantanamo Bay and afford them the rights that correspond to that status. The Abu Ghraib incidents, which are not isolated to that prison alone, were the direct result of a deliberate policy of keeping detainees beyond the bounds of international humanitarian law and condoning torture as a method of interrogation. The stupendous manner of the abuses practised in that prison compelled the U. S. administration at long last, to publicly acknowledge that something was wrong. Its prevarication with regard to substantive accountability for its practices of detention however continues.

Thus, we have now a more sophisticated argument than the supremacy of American justice, put forward to justify its decision to continue detaining Iraqi prisoners without charge. Iraq, it is said, does not have the capacity to superintend the detention of its so-called insurgents or conduct their trials. But this claim is also easily defeated by questioning as to why the United States does not, in the first and most obvious instance, allow responsibility in this regard to pass to the International Criminal Court? Instead, the current administration attempted to press the United Nations Security Council to renew its 2000 and 2003 exemption of its troops from prosecution for war crimes when serving in any U. N. peacekeeping operations.

From another perspective, the practice of entering into non-surrender agreements with individual countries putting nationals of both signatories beyond the jurisdiction of the International Criminal Court under the Rome Statute continues. As maybe remembered, Sri Lanka was one of three
countries from the South Asian Association for Regional Cooperation to sign such an agreement during the pendency of the previous government.
Unlike protests in Thailand against a similar attempt on the basis that it offended the principle of sovereignty and should b e a p p r ov e d b y parliament, we did not react in any way, which is, of course, not surprising given the present somnambulant state of our civil society. 

Change Needed

The impunity with which the United States continues to disregard basic human rights and humanitarian norms sets, of course, a dire precedent for other countries. Increasingly, one is beginning to hear murmurs from other governments that, what is good for the goose should also be good for
the gander. This is a slippery slope of the most dangerous kind. It is heartening that the U. N. Committee on Torture has now called for both the United States and Britain to present reports relating to prisoner abuse in their detention facilities, but what the U. N. can do as far as the United States is concerned is historically limited. However, an international "constituency of resistance" against powerful nations that put themselves
beyond the rule of law appears to be growing in strength. In the final analysis, it is only this force that can prod the U. N. into action. 

The U. S. Supreme Court rulings will help this "constituency of resistance" in a very particular way; unlike administration warnings or ruling by foreign tribunals, this is a reprimand delivered by the highest judicial authority in the United States itself. Accordingly, the Bush administration cannot disregard the rulings in quite the same juggernaut way in which it proceeded earlier. 

The point being made here is not difficult to comprehend. Significant overall change is needed in the patterns of detention engaged in by the U. S. military authorities. Detainees should be held subject to the guaranteeing of their basic rights, whether in the United States or in the facilities maintained abroad. Interrogation techniques practised on them should not violate humanitarian law. Without this, a few individual hearings before military tribunals with regard to lower ranking members of the military conveniently cast as scapegoats will accomplish little except set the United States even further beyond the norm of the community of nations.