As the world looks back at the 9/11 attacks that shook the world, and changed it, 20 years ago, PARSA VENKATESHWAR RAO JR writes about one of the most disturbing outcomes of the ensuing war on terror: the Guantanamo Bay detention camp, and argues that all terror suspects must be tried only at an international judicial forum such as the International Criminal Court.
ONE of the several troubling aspects of the war on terror in the wake of the September 11, 2001, terror attacks in the United States is the rounding up of hundreds of Islamic terror suspects in Afghanistan in November 2001, when the United States scored an easy victory over the then Taliban government, which was allegedly sheltering the Al Qaeda leadership, including Osama bin Laden.
The persons who were taken prisoner were denied the conventional prisoners-of-war status, which would have entailed the implementation of Geneva Convention relative to the Treatment of Prisoners of War. Most of the prisoners were sent to the Guantanamo Bay Detention Camp after it was established in 2002, and some of them were sent to secret Central Intelligence Agency “black sites” in Europe, Africa and the Middle East.
The US, and its North Atlantic Treaty Organization (NATO) allies, which were seen as guardians of liberal democracy and the rule of law, had no compunction in violating those same principles.
It is indeed the case that international law is not as well codified as national legal statutes, and the rights of individuals specified in international legal instruments, are considered tenuous, if not irrelevant, when invoked to protect the basic human rights of individuals. In the case of the prisoners rounded up in Afghanistan, many of them belonged to different nationalities. But there was no legitimate public discourse within the NATO security circles of what should be done with the captive terror accused, and how they should be treated.
The frenzy over Islamic terrorism became so heightened after September 11, 2001, that it was considered even traitorous to speak of the rights of those accused of terrorism. The legal principle that a person is innocent till proved guilty was overturned to mean that a person accused of terrorism is guilty until proved innocent. There was an indecent silence for a long time about the prisoners, who were pushed into the Guantanamo Bay Detention Camp, which lay beyond the mainland of the United States in a US military base in Cuba.
Also read: As Afghanistan plunges into a political crisis, a look back at the patent illegality of its invasion by the United States in 2001
Legal battle between federal govt and Supreme Court in US
It was made clear that the place was chosen to escape the jurisdiction of American civil courts. Then US President George W. Bush’s government came up with the term “illegal enemy combatants” to describe the prisoners, and it set up military commissions to try them.
Soon, a protracted legal battle ensued between the US government and the US Supreme Court over whether the detainees at Guantanamo possessed constitutional rights, including the right of habeas corpus.
In 2006, the US Supreme Court held that the military commissions set up to try the terror suspects violated the Geneva Convention and the Uniform Code of Military Justice. The Bush administration countered this with the Military Commissions Act of 2006. The Supreme Court quashed it in the 2008, deciding that the Act violated Article I of the US Constitution, which says: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the Public Safety may require it”.
In a 5-4 verdict, the court made it amply clear that the detainees “are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants …” (The Suspension clause in the US Constitution prevents the writ of habeas corpus from being suspended by the government.) Earlier in a 2004 verdict, the US Supreme Court had ruled that since the US government had jurisdiction over the Guantanamo Bay prison, US federal courts could entertain habeas corpus petitions.
Also read: Innocent But Damned
The problems with Guantanamo Bay
The history of the fates of the Guantanamo Bay prisoners is a long and sordid one, with the use of torture, as well as the failure of the US government to prove in an overwhelming majority of cases that those detained were either members of the Al Qaeda or the Taliban, or that they had planned terror acts against the US. The US authorities had to free most of them because there was no case against them.
It can be argued perversely that the unfair system still worked well because at least innocent persons were not wrongly convicted. But for the sake of justice, that would entail that the persons who were freed have a right to sue the US government for wrongly detaining them and for the torture they were subjected to.
It can be argued that in a war-like situation, errors of judgment are inevitable, and that it is possible that at least some individuals suspected of affiliation to Islamic terrorist groups and of committing acts of terror turn out to be innocent. It becomes all the more necessary, then, that those who were wrongfully confined should get due compensation to show that there was no malicious and mala fide intent in arresting the individuals.
The sense of horror felt against terrorists is so intense that in the moral revulsion that is generated at the gratuitous violence and hatred unleashed by them, people forget that there is need to be fair even to those who have violated all norms of humanity. If peremptory justice is what is seen as the right response, then the difference between terrorists and State parties fighting them will collapse.
The moral authority of those fighting terrorism and terrorists is derived from due process and basic respect for human rights of all. This view cannot be caricatured as wimpy liberalism, as one is tempted to do; it is absolutely necessary if society is not to be reduced to a savage state of war of all against all.
Also read: Interpreting the United Nations Security Council Resolution 2593 on Afghanistan: change or status quo?
International terrorists must be tried by ICC
Ideally, the transnational suspected terrorists whom the US and its allies had captured in Afghanistan in 2001 should have been tried by the International Criminal Court (ICC) at The Hague. It is true that the court came into existence in July 2002, though the Rome Statute, which had led to its establishment, had been signed in 1998.
Though 123 states have signed the international treaty, some countries such as India, the US and Israel have not signed it. If the US and Israel become signatories it is likely that several of their state officials would be liable for prosecution by the ICC because of their adversarial relationship with many rights groups in the world and their respective histories of war crimes.
But it should be possible for the US to arrive at a compromise in the case of members of international terrorist organizations, who, most of the time, are not even living or captured in the countries they belong to, as has been the case with most Guantanamo detainees. The advantage of trying such terrorists at the ICC is that it would be done on an international stage and not in a clandestine manner, as was done by the United States in Guantanamo. This would also not, in any way, compromise national sovereignty because the individuals arrested and to be tried are not citizens of the State prosecuting them.
There would, indeed, be many glitches, legal and otherwise, in the actual working of such a system, but it is worth the trouble because if terrorism is a universal scourge, it requires an international response. If NATO members felt compelled to join the war against terrorism in Afghanistan because they sensed the common danger posed by terrorism, then it should not be difficult to build an international institutional response in dealing with the legal aspects of bringing its perpetrators to justice.
However, as long as terror suspects are tortured, detained extra-judicially, and kept out of the purview of the legal order by the US and NATO, they will inadvertently keep giving wind to the sails of the diabolical ideology and the self-righteous cause of terrorist organizations.
With the current US President Joe Biden’s administration aiming to shut down the Guantanamo Bay facility within his Presidential term, it is hoped that one of the darkest chapters on the US’s rather long and chequered record of international human rights law violations can be closed soon.
(Parsa Venkateshwar Rao Jr. is a senior Delhi-based journalist, political commentator, and author of several books. The views expressed are personal.)