Letter from Kenneth Roth, Executive Director of Human Rights Watch to President George W. Bush re: Torture and Mistreatment of Detainees

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Letter from Kenneth Roth the Executive Director of Human Rights Watch to President George W. Bush concerning the accusations of torture and mistreatment of detainees published in an article in the Washington Post newspaper on December 26, 2002. The letter asks President Bush to investigate the accusations and to take any corrective action necessary to ensure that all of the detainees are treated in accordance with the Geneva Conventions and other international conventions on the detention and treatment of persons in custody.

Thursday, December 26, 2002
Tuesday, June 7, 2005

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December 26, 2002

President George W. Bush
The White House
1600 Pennsylvania Avenue. NW
Wsshington, DC 20500

Dear President Bush:

Human Rights Watch is deeply concerned by allegations' of torture and other mislreatment of suspected al.Qacda detainees described in the Washittgtun PO$r (''U.S. D~esAbuse but Defends Intctrogations") on December 26. The allegations.lif true, would place the United States in violation of some of the moSt fundamental prom'bitions o£,intcmational human rights law. Any U.S. government official who is directly mvolved or complicit in the tomlre or mistreatment of detainees, inCluding any official who knoWingly acquiesces in tbe calIlIlliasion of such acts, would be subjec~ to prosccution worldwide.
. Human Rights Watch urges YOIl to take ~atesteps to clBrlfy that the use of torture is not u.s policy, investigate the WClIhingron Pan's allegations, adop~ all neoeasary measmes to end any ongoing violations of iutemaUonallaw. stop thB rendition Of detainees to countries where they arc likely to be tenured, and· prosecute those implicated in such abuse.
L Prohibitions AgainSt Tortute
1he WCI8hington Post rePorts that persons held in the erA. inte1TOgation cenfet'S at Bagram air base in AtghaDiBtan arc ~ubjCDt ~"sU:eM ancJ duress" techniqu~ including Clatanding or kneeling for houtS" aUui being "held in~wkward. p.ainful positions.h The Post nates that the detention facilities at Bagram and elsewbete. such as at Diego Garcia, are: npt monitored by the lntCtn&ti.anal Committee ofthe . Red Cross, which bas mottitoICd the U.S. treatment of detainees at GuantAnamo .. Bay, Cuba. -
The absDlute prohibition against torture is a fQndamental aDd woll-establlahed
prcccp~of customarY and CQuvcntionai intcmationallaw•. Tott1e is never pcImiSBible against anyone, whether in limes of peace or of war.

'I'he prohibitiOn against torture is firmly established under intematicnaliluman rights law. It is prohibitedby various treaties to whi;h the United StaleS is a partY. including the International Covenant an Civil and Political Rights (ICCPR), which the United States ratified in 1992. and ~eConvention agamst Tortore and Other Cruel, Jrshnman or Degrading Treatment or Pultishment, whichthc United States ratified in 1994. Article 7 of the ICCPR states that j·No one shall be subjected to torture'or to cnlel. inhuman or degrading treatment or ptUJisnmcnt." The rlght to be protected from tanare is non--derogablc, moaning that .t applies at all times, incl\l~ing during public emergencies or wartime.
International humanitarian law (the. laws ~fwar), which applies during armed conflict, prohibits the torture or other mistteatment of caprured combatants and others in captivity, regardless of their legal status. Regarding prisoners--of-war, article 11 of the ThiId Geneva Convention of 1949 states: '''No physical cr. mental torture, nor any other fonn of coercion, may be inflicted on prlsonw of war to secure from them infonnation of any kind whatever. Prisoners of war who refuse to answer may not be threatcncd, insulted, or exposed to any wpleasant or disadvantageous treatDl.ent of any kind." Detained civiliBJl5 ate similarly protected by atticle 32 ofthe Fourth Geneva. Convention. The United States haS been a party to the 1949 Geneva Conventions since 1955. .
The United States dOeS not recognize captured al-QaCda members as being protected by the 1~49
OenCYa Conventiona. althottgh Busb administration officials 'have insistud that detainees will be
treated bummlely and in a manner consi.sumt with GeneVa principles. However~ at minimum. aU
dctainec& In wartime, regardless of thc:ir legal matus, 8.tC protected by customary international
hwn.anitarian law. Article 75 (IiFundamental GuaranteeS") of the First Additional Protocol to Ute
Geneva Conventions. wrucm is l'CCOgnized as restating customary intmnationallaw, providos that
.'torture of aIlldtuh. Whether,physical or mental" against "penof\s who ate in the power of a
Party to the conflict and who do not benefit wm more favorable tmatment under the [Geneva]
Conventions," shall "remain prohibited at any time and in any.place Whatsoever, whether . .committed by civilian or military agents." "[C]ruel treatmcn.t and toItUIe" of detaill~ is also
. prohibimd undez' camnum anic1e 3 to the 1949 Geneva Conventions, which iii c:onsid~ ~­indicative of customary intenlatimiallaw.
n. PO&Bibie U.S. Complicity in Torture
Itis a violation of in=uational1:aw not omy to use tortufC dUectly, but also to bo complic;:it in tortum committed by other govemmcnts. The Post tqX)rts bcJng told by U.s. officja.ls that lC[t)hausands have been arrested and held with U.S. assistaru:e in 'coun~known for brutal~ treafment of prtsonets.n The Convention againtt Torture proVides in artll;:lc 4 that an acts of ~JndWUng"an act by BllY pmon which constitutes .complicity or participation in tortun:." is an offense "pumshab1c by appropriat;c penalties which take into IWcount their grave n~,"
The POSl article descrlbes the rendition ofcaptUred. al-Qaeda suspects from U.S. custody 10 other coumries where they are tortured or otherniae miBtreated. 'Illis might alSo be a violation ofthe Conv=ti.on against TortUre, which in amcle 3 ll~S~ "No State Party shall expel, return ('xefower') or extradite a ~onto another Stale where there arc substBntial. grounds for believing that he woUld be in danger of being subjected to lorture.... For the purpOge of


determining wbe$er there are such grounds,'thc competent authorities shall take into account al.I
relevant considerations including. where applicablo, the existence in the State conoerned cf a
consistent pattern of grOss, flagrant armass violations ofhummi tights."
The u.s. Depa.rt:ment ofState annual report on human rights practices bas fnlqllently criticized
torture in cotmtIies whete detainees may have been sent. These include Uzbekistan, Pakistan,
Egypt, lanJan and Morocco. The United states thus could not plau&ibly claim that it was
unaware of the problem. of torture in these countries.

m. International Prosecutions for TortllI'e and Command Responsibility
Dizea involvement or complicity ill torture, as well aa the fail~ to prevent torture. may subject
U.S. officials to prosecution 'under intemationallaw. ' .
The willful tortW'C or inhuman tteatnlent of prisonens-of-war or ather detainees. including "willfully causing great suffering or serious injury to' body or hcal~.·' are "gJ.:avc breaGh~S" of the 1949 Geneva Conventions, commonly ]mown as war crimes, Grave breaches are subject to universal jurisdiction, meaning th~they can be prosecuted In any national criminal court IUlQ as . wel~ as any mr.ematioriol tribunal wirh appl'Dpri~te jurisdiction.
The Convention against TOrture obligates StateS Parties to prosecute persons within their jurisdiction. Who are impllilated orcomplicit in acts of tonure. This obligation includes me prosecution of persons Within their territory who committed acts of torture elsewhere and have not be extradited under proeeduxes Provided ill the con'llention. .
Should &enior U.S. officials b~comeaware of acts of torture by their subardmates and fail to take immediate atld effective steps to end. such practices, rhey too could be found cri.Ininally liable und=-intcmatioualIaw. The responsibility of superior officera for atrocities by tbeiT subordinates is commonly known as command respoDSibility. Although the concept originated ill military law. it now is in=asillgly accepted to include the reaponsibllity ofcivi1aumorities for
abuses committed by persons under their direct authority. The doctrine of command' . rc&ponsibilicy bas been upheld in m:ent decisions by dIe iIlternational criminal ta~unal!i for the fanner Yugoshlvia and for awanda. .
'Th.C1'C are two forms of command responaibUity: direct responsibility for orders that ue unJawful and imputed IC&pcmsibilUy, when a supcnor JcQows or sboukthave ~\VDof erlmes committed by a subordinate acting Ott his own initiative and fails to prevent or punish: them:: All sUites are" obliged to bring such people to justice.

'!be allegations made by the Washington Pqst are exttaordinarily serious. They have put the United Swes on notice that acts of torture ma.y be taking place with U.S. participation or complicity. That ctcates a heightened duty to respond.pmentively. Aa an i~diate&tep. we urge that you issue a preaidontial statement clarifying that i~ is Catltrary to U,S. policy to ~eor facilitate to~.'l11e Po,t's allegations should be investigated a.nd. the findings made public.
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Should there be evidence of U.S. civiJlan or mHiwy officials being directly involved or complici t in torture, or ill the rendition ofpersOns to plaoes wbere they are likely to be tortured, you should take immediate steps to preVent the commi~Dn of such acts and to prosecute the individuals who have ordered. organized, condoned. or canied them out. The United States also has a duty to fCfrain from sending pmons to other oountrics with a history of torture wirhouc explicit and verifiable gll8J'8Dtees that no tortUre or mistreatment will occur. . .
Thank you for y0111' attention to these concems.

Executive Director
Cc: Colin Powell. Secretary of State
Donald Rumafeld. Secretary ofD~fense .
Condoleezza Rice, National Security Advisor