UN Human Rights Council Discusses Secret Detention Report
On June 3, largely unnoticed in the Western media, the UN Human Rights Council held an interactive dialogue to discuss the “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.
The study (A/HRC/13/42) was published on February 19, 2010, and is available here as a PDF. Over the course of this week, I’ll also be publishing section 4 of the report, dealing with US policies since the 9/11 attacks, in three separate sections. The first examines “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second looks at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.” An advance unedited version of the report was published on January 26, which I discussed in an article at the time, entitled, “UN Secret Detention Report Asks, ‘Where Are The CIA Ghost Prisoners?’”
The report focused on 66 countries involved in the secret detention of terrorist suspects since 9/11. Many of these — including European countries, Canada, Australia, Egypt, Jordan, Morocco, Syria and Pakistan — were tied in with the activities of the United States, in the section of the report mentioned above, which collated information about US policies involving “extraordinary rendition” and secret prisons, focusing on the most up-to-date information about the 98 prisoners held in the CIA’s secret prisons, and the many dozens of others subjected to “extraordinary rendition” and torture in other countries, where they were sent by the CIA.
In addition, 25 other countries — including Algeria, China, India, Iraq, Iran, Israel, Libya, Russia, Saudi Arabia, Sri Lanka, Sudan, Uganda and Zimbabwe — were also included, in a section analyzing the nature and scope of secret detention practices around the world
In my article in January, I also explained that, in the report, the experts concluded that, “On a global scale, secret detention in connection with counter-terrorist policies remains a serious problem,” and that, “If resorted to in a widespread and systematic manner, secret detention might reach the threshold of a crime against humanity.” Moreover, as IPS explained on June 3, the report also notes that many countries, citing national security concerns, which are “often perceived or presented as unprecedented emergencies or threats,” resort to secret detention, even though “International law clearly prohibits secret detention, which violates a number of human rights and humanitarian law norms that may not be derogated [from] under any circumstances.”
In the months since the report was published, its progress towards discussion in the Human Rights Council was almost derailed in March, when Russia, a number of African countries and the Organization of the Islamic Conference objected to it, claiming that the experts “violated the [UN] code of conduct and acted outside [their] mandates.” These criticisms, which delayed the discussion of the report until June 3, prompted Manfred Nowak, the Special Rapporteur on Torture, to condemn them as “a totally political consideration” and to point out:
We are independent experts — the eyes and ears of the council — and we provided it with a report drawing their attention to a very serious worldwide problem based on a great deal of work over the past year. Secret detention is not just a minor human rights violation; it’s a crime, a major human rights violation … I am seriously concerned by the way states at the Human Rights Council are treating their own independent experts. The council should stop criticizing its own experts and start taking human rights seriously and collaborating with its independent experts to address major human rights violations by the states that are responsible.
As a result of this dissent, the discussion of the report two weeks ago was something of a triumph, although it remains to be seen whether the Human Rights Council will respond positively to the experts’ call for a resolution on secret detention, demanding “explicit legislation prohibiting secret and other unofficial detention, the mandatory keeping of detention records and independent inspection of all detention sites,” as well as the immediate closure of all secret detention facilities, and compensation for those subjected to secret detention.
Manfred Nowak told the Human Rights Council, “We think this is enough evidence that the council should take action,” and in the debate the experts stated that “secret detention should be explicitly prohibited along with all other forms of unofficial detention,” and noted, “In almost no recent cases have there been any judicial investigations into allegations of secret detentions and practically no one has been brought to justice.”
After the debate, Martin Scheinin, the Special Rapporteur on the Protection of Human Rights while Countering Terrorism, said it was “clear from the debate that the issue had not been brushed away despite months of delay,” as the Swiss website Expatica described it. Speaking to journalists, Scheinin said, “I don’t think the Human Rights Council can ignore the need for inquiries at domestic level, that will necessarily be part of the package.”
Despite the experts’ hopes, Deutsche Welle noted that a detailed questionnaire that experts sent to the UN’s 192 member countries was only answered by 44 of those countries, and, moreover, “Of these, not one admitted to the existence of secret prisons. The report’s authors depended on independent sources for their investigation and many countries denied them any kind of access to relevant materials or sources.”
The article also noted, “During the debate, China, Russia, Pakistan, Sri Lanka, Syria, Algeria and other African nations denied that any secret detention facilities existed on their territory.” Revisiting the complaints they made when the report was first published, “They accused the report’s authors of sloppy research, of overstepping their mandate and of compiling the report without being commissioned to do so by the UN Human Rights Council.” A sign of the kind of dissent that surfaced can be found in comments made by Syria’s representative, who, despite the country’s well-known human rights abuses in its prisons, stated, “We are concerned at the unprofessional way in which the report was written and presented. The report makes use of unverified allegations by non-credible parties and presents them as fact.”
Nevertheless, reflecting on the discussion, Martin Scheinin told IPS, “It went better than expected. The report has been very controversial and now there appears to be acknowledgement that the issue is serious enough not to be trivialized by procedural filibustery.” He added that a number of countries who were originally opposed to the report, like Egypt, “chose not to speak” at the meeting, rather than raising objections, although he acknowledged the complaints of Syria, Russia and Algeria (speaking on behalf of the African Group), and specific complaints raised by Canada, China, Ethiopia, and Nepal.
As Deutsche Welle also explained, however, “Only a few UN states, including Sweden, Canada and South Africa, gave their unreserved approval to the report during the debate of the Human Rights Council,” and although the US ambassador to the UN, Susan Rice, made it clear that the dark days of John Bolton (President Bush’s ambassador, who had nothing but contempt for the UN) were long gone, her attempts to deflect attention from scrutiny of the US rendition and torture program, by mentioning President’s Obama promise to close Guantánamo, were weak for two reasons.
The first of these is because the President has, in fact, failed to close the prison, having missed his self-imposed deadline for doing so, and no new date has been set for its closure; and the second is that, as Deutsche Welle also noted, Susan Rice “made no comment on the Bagram facility, the main detention facility for persons detained by US forces in Afghanistan, or other formerly secret prisons in third countries where American officials sent prisoners who were then often subjected to harsh interrogation procedures or torture.”
Even so, the experts were obviously relieved that the US had not opposed the report. Shaheen Ali explained that the US ambassador to the Human Rights Council, Eileen Donahoe, “backed the study although she raised concerns about the methodology used in preparing it,” and Martin Scheinin added that, although, as “a matter of international law,” the Obama administration was “continuing to violate their human rights obligations by not closing” Guantánamo and by not holding trials for those held there, “on the domestic level and on the policy level, I understand the situation. The government is unable to do anything when the legislature prohibits part of the options available, namely taking a single person from Guantánamo to the mainland United States.” As a result, he said, he understood that the focus is on convincing third countries to offer homes to prisoners cleared for release, who cannot be repatriated because of fears that they will be tortured in their home countries.
Without accountability for the crimes committed under the Bush administration, and explanations of what happened to the significant number of prisoners held in the secret prison network — beyond those who ended up at Guantánamo, who were released (in a few cases) or who, like Ibn al-Shaykh al-Libi, were repatriated and later killed — the experts’ call for secret detention to be brought to an end will lack the kind of impact that will make other countries think twice about aping US policies, or continuing with the kind of policies that inspired the Bush administration in the first place.
In the report, President Obama got off lightly given recent reports of dubious detention and interrogation practices in Afghanistan — even though, just the day before the discussion of the report in the Human Rights Council, Philip Alston, the Special Rapporteur on extrajudicial executions, issued a report on America’s “targeted killing” program using drones, and told the Council that it amounted to “a license to kill without accountability.” With reference to what he described as the “prolific” US use of “targeted killings,” which also echoed what happened with President Bush’s program of “extraordinary rendition,” secret detention and torture, Alston explained that the US was “setting a damaging example that other countries would follow,” as Middle East Online described it.
“I’m particularly concerned that the United States seems oblivious to this fact when it asserts an ever-expanding entitlement for itself to target individuals across the globe,” Alston told the Council, adding, “In a situation in which there is no disclosure of who has been killed, for what reason, and whether innocent civilians have died, the legal principle of international accountability is, by definition, comprehensively violated.”
Alston’s report helped to shine a light on the extent to which drone killings have replaced the messy business of “extraordinary rendition,” torture and secret prisons under the Obama administration, further undercutting Susan Rice’s protestations about President Obama’s record, and reinforcing how important the role of the United States is in shaping internationally acceptable standards for dealing with terrorism.
It is not enough for President Obama to maintain, as he has since before taking office, that his administration wants to “look forward and not backwards.” By doing so, he ensures that the crimes of the previous administration not only remain largely hidden (as the report demonstrates), but, more importantly, a message is sent out to the rest of the world that those at the highest levels of the US government who commit crimes that “might reach the threshold of a crime against humanity” continue to demonstrate, through their speeches and tours, that they are, to all intents and purposes, beyond the law.
And with the continuing exposure of his own forays into similar territory through the CIA’s “targeted killings” program, President Obama also needs to reflect on his own responsibility to uphold “the legal principle of international accountability” whose wreckage is so thoroughly exposed in the UN’s secret detention report.