Friday, May 2, 2014
On the 10th anniversary of the publication of the horrific images of Abu Ghraib, co-editor Deena R. Hurwitz shares her reflections on the ongoing lack of accountability for the abuses that occurred. A shorter version of this op ed was published by the Richmond Times Dispatch on Thursday May 1.
Deena R. Hurwitz writes:
Ten years ago this week, one of the most notorious incidents of torture was exposed. The images from Abu Ghraib, the military detention center in Iraq run by the United States, of naked, bloodied, contorted bodies and terrified, humiliated Iraqi faces incited shock and anger towards the United States. We remember the names — Lyndie England. Charles Graner. Infamous “bad apples” in a detention center run amok. Some – primarily low-level “bad apples” — have been held to account. Many of the interrogators, their employers, and the officials with command responsibility who either directly authorized or who turned a blind eye to what was happening have not been.
But how many people know the names of Suhail Al Shimari, Taha Rashid, Salah Al-Ejaili or Asa’ad Al-Zuba’e? They are four of the many Iraqi civilians who were subjected to electric shocks, sexual assaults, stripped and kept naked, forced to witness the rape of a female prisoner, sensory deprivation, mock executions, stress positions, broken bones, and deprivation of oxygen, food and water, as well as other dehumanizing acts of torture at Abu Ghraib before their eventual release without being charged. They have sued CACI Premier Technology for its actions at Abu Ghraib, including among other claims, torture, war crimes, sexual assault and battery, intentional infliction of emotional distress, negligent hiring and training, and cruel, inhuman and degrading treatment.
In the decade since the notorious Abu Ghraib torture photos were released, not one private military contractor has been held accountable.
Mr. Al Shimari, Rashid, Al-Ejaili and Al-Zuba’e have a case pending in the federal courts in Virginia, where CACI has its headquarters. The defendant has tried to have the case dismissed on procedural grounds, arguing that because the acts of torture occurred outside the United States’ official borders, U.S. courts have no power to hear this case. CACI has also argued that the case challenges U.S. military decisions, suggesting that it was ordered to direct the torture, although it can show no such order and its military co-conspirators were court marshalled for their role in the mistreatment of detainees. While the trial court accepted the first argument to dismiss the case, the plaintiffs appealed and the Fourth Circuit Court of Appeals held a hearing on their appeal in March. The merits of their claims of torture and other abuse have yet to be considered.
Few international norms are more firmly established than the prohibition against torture. This prohibition is recognized as universal and absolute in every major international human rights and international humanitarian law instrument, including treaties ratified by the United States. For example, the 1949 Geneva Conventions prohibit torture as such and as a war crime “at any time and in any place whatsoever.” The Convention against Torture (CAT) asserts that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The United States is a party to both treaties.
The right to an effective remedy to violations like torture is firmly established by nearly every major human rights treaty, numerous court decisions and scholarly works. The CAT requires each State party to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation . . . .”
The International Covenant on Civil and Political Rights (ICCPR), also ratified by the United States, prohibits torture and cruel, inhuman and degrading treatment as well. That treaty requires each State party to establish remedies for any violation of its provisions, including the right to bring a claim and to have that claim heard. The ICCPR further requires States to ensure that the authorities enforce such remedies when granted. As the current UN Special Rapporteur on Torture, Professor Juan Méndez has said, “The duty to ensure means that States are obliged to take specific steps to redress the wrong committed by each violation of a right.”
Our international legal obligations to provide an effective remedy include the duty to investigate violations, punish offenders, and provide victims with equal and meaningful access to justice and redress. At a minimum, victims of torture must be allowed access to justice in U.S. courts, particularly where agents of the United States are implicated as perpetrators. Where there is no alternative forum for a hearing, denying a torture victim access to the courts is a violation of international law.
Failure to provide victims with meaningful access to the judicial system creates de facto immunity for alleged perpetrators of acts of torture. Torture victims’ ability to obtain redress helps deter further violations, which policymakers have recognized though legislation such as the 1991 Torture Victim Protection Act.
Under the terms of the U.S.-led Coalition Provisional Authority Order 17 in effect in Iraq at the time, contractors like CACI could not be held liable in Iraqi courts. By its terms, CPA Order No. 17 expressly provides private contractors immunity from the Iraqi legal process, and states that they “shall be subject to the exclusive jurisdiction of their Parent States.”
The United States is compelled by treaty to make available an effective remedy for victims of torture. We can only hope that another decade doesn’t pass before the United States accords the victims of Abu Ghraib a measure of justice.
Deena R. Hurwitz is professor of law and director of the International Human Rights Law Clinic at the University of Virginia School of Law. She and her clinic students, Lauren Schnyer (J.D. ’15) and Jennifer Tian (J.D. ’14), wrote an amicus curiae brief for the Fourth Circuit in Al Shimari, et al. v. CACI PT Inc. with the U.N. Special Rapporteurs on Torture, Juan E. Méndez, Manfred Nowak, Sir Nigel Rodley and Theo van Boven.