By Katherine Iliopoulos
Spanish investigative judge Baltasar Garzón is continuing in his quest to secure accountability for acts of torture committed by United States officials at Guantanamo Bay.
On April 29, Garzón initiated a preliminary criminal inquiry into allegations of torture at Guantanamo Bay made by four Spanish nationals who had previously been held at the detention centre and later released without charge. Garzón said in his writ that he will probe the “perpetrators, the instigators, the necessary collaborators and accomplices” to torture.
This latest investigation, based on universal jurisdiction, is separate to Garzón’s earlier request for Spanish prosecutors to examine the case against the six Bush Administration lawyers allegedly responsible for devising the legal framework that made torture possible at the facility. The earlier investigation is now in the hands of Judge Eloy Velasco, who will decide whether or not the Spanish judiciary will allow the complaint to proceed. Garzón is now seeking to have this complaint referred back to him for purposes of consolidation with his new investigation.
Garzón is acting independently, rather than in response to a complaint filed with the National Court, the usual procedure in Spain for investigations based on universal jurisdiction.
Known as the ‘Spanish Taliban,’ Hamed Abderrahman Ahmed, Lahcen Ikassrien, Jamiel Abdul Latiff Al Banna, and Omar Deghayes each made statements claiming that they were physically and mentally abused during their detention, including being held in cramped cells. The four men claimed that they had been tortured “under the authority of personnel from the US Army.” Some of the torture allegations include sexual abuse, beatings and the throwing of fluids into prisoners’ eyes.
Garzón also took into consideration the statements of three other former Guantanamo detainees, a Moroccan, a Palestinian and a Libyan. The Palestinian, Jamiel Abdelatif al Banna, suffered blows to his head that caused him to lose consciousness, and was detained underground without light, food or sleep for three weeks.
In the 10-page writ, Garzón cited the recently released CIA ‘torture memos’ as evidence of an official plan of approved torture and abuse of people being held in custody without charge or due process, and confirmation of a previously held suspicion of “the existence of an authorised and systematic programme of torture and mistreatment of persons deprived of their freedom” in contravention of international law. In particular, the writ appeared to rely heavily on a collection of memoranda prepared by lawyers in the Bush Justice Department’s Office of Legal Counsel (OLC) a report of the Senate Armed Services Committee and a memo released by the Senate Intelligence Committee. For this reason, although the targets of the investigation have not been specified, it appears likely that the authors of the torture memoranda, other lawyers, and possibly senior officials of the Bush administration would be the focus of the investigation.
US Attorney General Eric Holder has not ruled out cooperating with evidentiary requests arising out of such an investigation.
Garzón wrote that abuses at Guantanamo and other US prisons such at Bagram in Afghanistan suggest ”the existence of a concerted plan to carry out a multiplicity of crimes of torture,” adding that this plan was of ”almost an official nature and therefore entails criminal liability in the different structures of execution, command, design and authorization.”
The alleged abuse, if confirmed, would constitute a violation of the 1949 Geneva Conventions, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, customary international law, the Geneva Conventions and US Federal law.
Article 16 of the Convention against Torture prohibits cruel, inhuman, and degrading treatment. However, the US has a reservation to this provision, with the result that, as far as the US is concerned, there is no legal prohibition under the CAT on cruel, inhuman or degrading treatment with respect to non-US nationals overseas. The CAT also establishes universal jurisdiction over cases of torture. If a person accused of torture is present in another country that has ratified the Convention, that country has an obligation to carry out an arrest, and either prosecute or extradite the suspect.
United States domestic law also prohibits crimes of torture. The government has reported to the Committee Against Torture that: “Every act of torture within the meaning of the Convention is illegal under existing federal and state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes. Such prosecutions do in fact occur in appropriate circumstances. Torture cannot be justified by exceptional circumstances, nor can it be excused on the basis of an order from a superior officer.”
A federal anti-torture statute (18 U.S.C. § 2340A) enacted in 1994 provides for the prosecution of a US national or anyone present in the United States who commits or attempts to commit torture outside the US. A person found guilty under the act can be jailed for up to 20 years or receive the death penalty if the torture results in the victim’s death. Private contractors working with the U.S. military can also be prosecuted under the Military Extraterritorial Jurisdiction Act 2000 (MEJA) for federal criminal offences punishable by imprisonment for more than one year.
Spanish lawyers close to the case told writer and law professor Scott Horton that under applicable Spanish law, the Obama administration has the power to bring the proceedings in Spain against former Bush administration officials to a standstill. “All it has to do is launch its own criminal investigation through the Justice Department: that would immediately stop the case in Spain.”
The US War Crimes Act 1996 criminalises breaches of the Geneva Conventions, including Common Article 3 which prohibits torture, wilful killing, inhuman and humiliating treatment. However, although the US Military Commissions Act 2006 effectively prevents perpetrators of several categories of what were war crimes at the time they were committed from being punished under US law but it would not stand in the way of prosecutions under the anti-torture statute.
In one of his first acts after taking office on January 20, 2009, President Barack Obama ordered the closure of Guantanamo Bay within 12 months. Now the US Justice Department is considering which detainees will be taken by other countries or placed on trial. Defense Secretary Robert Gates said on April 30 that there are 50 to 100 detainees who cannot be tried or released, suggesting that some inmates might have to be detained further even after the closure of the detention facility. Only 60 of the detainees have been cleared for release, once a country can be found to take them, and about 80 are expected to face criminal charges.
Mr. Gates said that some of the 17 Chinese ethnic Uighurs being held at Guantanamo may be allowed to settle in the United States, to help encourage allies to accept some of the detainees. On April 29, a Swedish court upheld the asylum bid of a Uighur freed from Guantanamo in 2006. Adil Hakimjan, a former merchant who ended up in the hands of a Pakistani bounty hunter after fleeing ethnic persecution in China, this February became the first Guantanamo ex-detainee cleared of wrongdoing to avoid being sent back home and to be granted political asylum in the European Union.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Writ (In Spanish)
Prosecution of Bush Six Back On
By Scott Horton
The Daily Beast, April 29, 2009
Freed from Guantanamo, a Uighur clings to asylum dreams in Sweden
By Ritt Goldstein
Christian Science Monitor, April 24, 2009
Report: Getting Away with Torture? – Command Responsibility for the US Abuse of Detainees
Human Rights Watch
April 23, 2009