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After the 9/11 attacks on New York, the US administration has launched a global
“war on terror”. This war has lead to the invasion and occupation of Afghanistan
and Iraq, which made place –and still make- to serious controversies on their
legitimacies, and have let seen very large demonstrations in most countries. In
addition, a more global war was launched against alleged ‘terrorist
organizations’ and individuals, including “Al Qaeda” organization. This other
–global- war has implied several legal and humanitarian issues, that have raised
concerns from both NGO’s and some countries’ states institutions. These concerns
are linked to the very nature of this asymmetric war, between the USA and a
constellation of “fighting” groups and individuals in different countries, as
well as to the conditions of arrest, transfer, detention and trial of “suspects”
individuals.
In Europe, most governments have been silent on the issue of the nature of this
war, and expressed their full support to the USA in it. And it took few years
and a large quantity of reports on legal and human rights abuses (and “scandals”
on abuses, such for the case of Abu Gharib prison), before that some head of
States or government starts recently to publicly express their concerns, in
particular on the detention conditions in Guantanamo Bay.
In fact, the main European critics on this global war started only to take an
official form in 2005 with the decision of the European Council to form an
investigation commission on CIA secret prisons, involving member States in
violation of European human rights
standards.
The commission, lead by Dick Marty, has since delivered two reports on its investigations. In the same time, the President
of the Parliamentary Assembly of the OSCE appointed Mrs Anne Marie Lizin as his special representative to follow up and
report to the Assembly on Guantanamo Bay detention camp. Since, Mrs. Lizin has
delivered three reports.
The European Council investigation has reported fundamental human rights
violations of several member states, in contradiction with the European
Convention of Human Rights and the European Convention for the Prevention of
Torture. It has revealed a clandestine “spider web” of disappearances, secret
detentions and unlawful inter-state transfers flights, created by the CIA with
the collusion of European countries (and others, including those notorious for
their use of torture) (see Figure). From a legal and human rights point of view,
the major issues depicted in these reports stands as follows:
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In its “war against terror”, the USA has introduced new legal concepts, such as
“enemy combatant” and “rendition”, which were previously unheard of in
international law and stand contrary to the basic legal principles, including
the Geneva Convention;
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The cooperation of member states took place in secret and without any democratic
legitimacy;
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A
systematic exclusion of all forms of judicial protection for the “suspects” and
their deprivation of their basic rights, including the right to a fair trial;
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It is proven that large numbers of people have been abducted from various
locations, transferred to countries where they have been detained in secret and
persecuted, with use of ‘enhanced interrogation techniques” (i.e. torture). Some
were released after woods, as they “were plainly not the people being sought”,
without any apology or compensation.
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More importantly, the conditions of reddition, abduction and detention of
“suspects” were differentiated between US and non-US citizens, reflecting a kind
of “legal apartheid”.
So in many European countries, the things went far beyond how legally a war
could be declared, how detention camps could be organized in legal conditions,
and how extradition of individuals could be legally made. And on another level,
the things went for individuals beyond all human and legal rights, on how they
could be declared “suspects”, arrested, interrogated (torture), detained,
convicted in crimes, and condemned.
The reports put strong recommendations to its member states and to the USA on
the violations. However they recognize that the European Council and its
committee lack investigative powers to go further in their investigation and
recommendations for democratic control and enforcements on the illegal
practices. They then call on the national parliaments in the member states to
take the necessary appropriate actions in their respective countries.
The OSCE Parliamentary Assembly investigation focused particularly on Guantanamo
Bay detention center. The first report addresses the issue questioning the
efficiency of this detention center itself in the ‘global war on terror”, and
call for its closure, in the interest of US, with a timeframe for the procedures
depending on the nationalities of the detainees. The second report came in 2006
after that the OSCE delegation has been granted a one day visit to
the detention camp. It takes reference on the
decisions of the US Supreme Court (2004 and 2006) to declare illegal the
procedures used by the US executives. It points also that raging war, instead of
criminalizing terrorism “is excessive and is likely to confer greater legitimacy
to Jihad terrorists than they already have”, and that war “is likely to extend
over decades”. Another visit was organized in 2007 to Guantanamo, and third
report stems out three major perspectives:
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The necessity for disbandment of Guantanamo, especially for the bad public image
it makes for the “war on terror” (“a major problem problem of the US in the eyes
of the world”), and for that it has accentuated radicalism within the detainees;
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The necessity to ground the judicial legalities for the detainees: where and how
to judge them?
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The necessity to ground the legalities of the status of the “global war”.
Of course, these reports came following many alerts formulated much earlier by
NGO’s and human rights organization, on the different violations committed in
the name of the “war on terror” on both individuals and societies (namely on the
principle of “rule of law” which is the basis of the proper functioning of –
democratic- states and of their relations). It is worth noting that these
reports were made by “inter-national” parliaments (Europeans in the large sense
here), and that were little followed by national procedure in European countries
national parliaments or state institutions.
We are then facing a raged war situation on international territories, without
formal war declarations
(by the proper democratic
institutions of each country) and without respect of international war rules
(including the Geneva Convention). Worse, the differences between nations on
international conventions were used by the US executive to place detention camps
and organize transfers.
More importantly, this dichotomy between the international/European and the
national levels for the investigation/condemnation of the abuses is also
observed for the NGO’s. Most of the NGO’s activities on these issues were that
of the international ones; very little followed on the national levels,
by local NGO’s and civil society forces (political parties, unions, etc.), in
order to pressure
locally particular governments for their accountability on the abuses.
Of course the international NGO’s have considerable financial means
comparatively to local NGO’s, and it is worth noting that the
European Commission is the first financial contributor
to international NGO’s. However, this quasi silence of national activists on
human rights issues and those concerning the abuses of local legalities is
striking.
One major explanation is related to the spectacular character of the 9/11
attacks and the over-mediatization of the “war on terror”. An atmosphere of fear
has been installed in most countries, against a demonized “enemy”, confused
globally with an Islam difficult to apprehend, giving credibility to the
prophecy of “clash of civilizations”. On one hand, local forces surrendered
their fate to their
governments in this “complex” war, and on another hand, many of the human and
social rights activists were, even themselves,
gained by the islamophobia and the propaganda. Some kind of “There is no other
alternative”
behavior has been installed.
This question is of importance for the future developments of this war, which
are of importance for the national and international NGO’s alike. On the most
urgent side, there is the fate of those presently detained, in particular in
Guantanamo Bay and other out of legality detention centers. Those proven guilty
have the right of a fair trial in clear conditions (in their respective
countries, or that where the crimes were committed, or by an international
court). Thus, the present pressures to close Guantanamo Bay pose numerous
problems on national levels, that local NGO’s have to care about.
On a more global side, any war has to come to an end. And this end has to be
thought of.
Dick MARTY is member of the Swiss Council of States, member of
the Parliamentary Assembly of the Council of Europe, and Chairperson of
the its Committee on Legal Affairs and Human Rights.
Mrs. Anne Marie LIZIN is a Belgian Senator, President of the
Belgian Senate.
With the notable exception of the case of Italy, where the CIA
officers were prosecuted and condemned for the actions performed
“illegally” on Italian territory.
Only NATO assistance conventions were evoked for the assistance browed
by member states to this US lead war.
With the notable exception of the USA itself.
Editor in Chief and General Manager, le Monde Diplomatique
editions arabes.
aita@mafhoum.com.
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