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Enhanced Interrogation Techniques‟: Is It Justified Under IHL & IL Discourse

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Enhanced Interrogation Techniques‟: Is It Justified Under IHL & IL Discourse International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186 Combating International Terrorism & Torture on Suspected Terrorists in the Form of „Enhanced Interrogation Techniques‟: Is It Justified Under IHL & IL Discourse Nighat Nazir Law Department, International Islamic University Islamabad, Pakistan Abstract: - U.S. counterterrorism operations are being carried War on Terrorism, the Department of Defense „DOD‟2 and out on an unprecedented scale. After the terrorist attacks of 9/11, the Department of Justice „DOJ‟3 played the key role for the the US administration declared a worldwide war on terrorism, enhancement of torture policy. The Administration developed involving open and covert military operations, new security the policy of institutionalized torture4 which euphemistically legislation, efforts to block the financing of terrorism, and more. referred to as “enhanced interrogation” and by the practice of Criticism of the ‘War on Terror’ addresses the moral 5 grounds, fiscal efficiency as well as other issues pertaining to the “extraordinary rendition”. war. Even the phrase ‘War on Terror’ itself is labeled as a The law Professor John Yoo served as deputy misnomer. The notion of war has proven highly contentious, with assistant attorney general in office of Legal Council (OLC) in critics charging that participating States exploited it to pursue the Department of justice. In very short span of time; he wrote long-standing policy and military objectives and jeopardize civil liberties, thereby violating obligations under the Geneva memos pertaining to the president authority in encountering Conventions and other international instruments. The U.S terrorism. It comprised assertions that the Geneva government is accused of deliberately choosing Guantánamo as Conventions did not apply to al-Qaeda or Taliban fighters. its prison place because it believes that foreign citizens detained there will be outside the domain of U.S. law and international obligations under various international instruments. The Article 2 US Department of Defense: Executive Department of the will narrate the basic concept of torture and its prohibition Government of United State charged with coordinating and supervising under international law. It also highlights the enhanced agencies and functions of the Government and directly concerned with National Security and United States Armed Forces. interrogation techniques used by CIA on the detainees, though 3 United States Department of Justice (DOJ: The Federal the US Government banned these techniques 10 years ago. It will 1 executive Department of United State is responsible for the enforcement of also demonstrate that utilitarianism does not support the use of law and administration of Justice. The Department is led by the Attorney torture in any circumstances, not only because another method General, who is nominated by the President and confirmed by the Senate and of interrogation is more effective, but also because the practice of is a member of the Cabinet. The current Attorney General is Eric Holder interrogational torture undermines individual security. Finally, it concludes that utilitarianism demands the absolute prohibition 4Kathleen Clark, elaborates the issues raised related to the torture of torture. A detailed analysis of the International law and memorandum that In 2001, war on terror Bush Administration was searching international human rights instruments expounds that the US for the place to imprison and interrogate the Al Qaeda alleged members beyond the jurisdiction of and the supervision of United States Courts. The must provide fair trials in Courts to all terrorism suspects, torture policy is developed by the Bush Administration under the supervision ensure accountability of any violation of human rights and bring of Department of Defense and the Department of Justice. The DOD believed all national security policies in line with its obligations under that the Naval Base at Guantanamo Bay is best place to work so it ask to International law. Justice Department office of Legal Counsel whether federal courts would entertain habeas corpus petitions filed by prisoners at Guantánamo, or whether they would dismiss such petitions as beyond their jurisdiction. In 28 I. INTRODUCTION December, 2001, OLC answered with detailed analysis that how federal he institutionalization of torture by US officials under the courts were likely resolved the jurisdiction query. The Memorandum prepared by OLC which elucidate the arguments against such jurisdiction but it also T Bush Administration since September, 2001.it was the provided credible strengths in the opposing position. For Details see Kathleen severe violation of the constitution and the laws of United Clark, Ethical Issues Raised by the OLC Torture Memorandum, (Washington State and as well as the violation of International Law. The University in St. Louis School of Law- May26, 2006), PAPER NO. 06-05- torture policy evolved by the Bush Administration in Global 02.Online Available at:<file:///C:/Users/sony/Downloads/SSRN- id901675.pdf> 5 1 M. Cherif Bassiouni, “The Institutionalization of Torture by the Utilitarianism is an ethical theory that states that the best action is the one Bush Administration is anyone Responsible?” (Antwerp-Oxford-Portland: that maximizes utility Intersentia 2010), 1-5. www.rsisinternational.org Page 14 International Journal of Research and Innovation in Social Science (IJRISS) |Volume II, Issue XI, November 2018|ISSN 2454-6186 According to memos, “American International Guantanamo bay. The astonishing fact is that after more than Communications could be subject to National Security six years the fifteen men were brought to Guantanamo Bay Agency in investigation without warrant.” In response and the prosecutors sought charges against them but the domestic and international anti-torture laws only applied to a convicted only one.11 So the legal question is raised here very small class of interrogation practices. These memos about the imprisonment life of suspected person. It‟s a rule of commonly referred to as the “Torture memos”, according to law „A person is innocent before court until proven guilty‟. OPR (Office of Professional Responsibility) examined that “The impartial term “suspected terrorist” poses initial John Yahoo and Jay Bee signed off on 2002 memos and problem, which arises less from the vague expression violates the professional norms and standers.6 “terrorist” than from the qualification as “suspected” of being The Memorandum presented by Mr. Alberto a terrorist. The difficulty raised by the term “suspected Gonzales under the subject of Re-application of the Geneva terrorist” lies in the assumption of an uncertified criminal Convention on Prisoners of war to the conflict with Al Qaeda charge, not based on disclosed evidence, which can‟t be and the Taliban. According to statement, war against terrorism challenged before competent tribunal, unless the alleged is a new kind of war. It was not the traditional battel between terrorist is brought before court. All that can be known priori nations adhering to the laws of war that formed the about a suspected terrorist” in the targeted killings during background for POWs7. The nature of new war places a high armed conflict, is that he or she may be either a person failing premium on others factors, such as the ability to quickly under the category of a combatant (a legitimate target as long obtain information from captured terrorists and their sponsors as he is not hors de combat), or of civilian”.12 in order to avoid future violence against American.8 Although there is no one widely accepted definition of terrorism in international law. In that way, there are various II. DEFINITION AND LEGAL STATUS OF „SUSPECTED diplomatic attempts are made and some are ongoing to draft a TERRORISTS‟ global convention about terrorism. Now the same difficulty In the „war on terror‟9 more than thousands people captured lies with the term „suspected terrorists‟ as its uncertified by US army and detained to them in different secret black criminal charge which is not based on disclosed evidence and sites under US control.10 While during 2001 to 2010 and till even can‟t be challenged before competent tribunal unless now an estimated 150,000 to 200,000persons are captured and alleged terrorists is brought before court. It‟s a comprehensive more than 800 are still living the life of imprisonment in definition of suspected terrorists which almost cover the whole topic and issues.13 6 Nancy V. Baker, “The Law: Who Was John Yoo's Client? The Torture Memos and Professional Misconduct”, (New Mexico State 11 This report was written by Deborah Colson, senior associate, University- Vol. 40, No. 4 (December 2010), pp. 750-770. Human Rights First Law and Security Program, and Avi Cover former senior 7 Geneva Convention III on the Treatment of Prisoners of War counsel of Human Rights First Law and Security Program. “Tortured Justice 1949. Using Coerced Evidence to Prosecute Terrorist Suspects” which is written on 8 Mark Danner, “Torture and Truth America, Abu Ghraib, and the April 2008.Bush Administration asserted that the “enhanced” interrogation war on Terror” (London: Granta Book, 2004), 83-85. techniques program by central intelligence Agency is compulsory to protect 9The term “war on terrorism” is used globally counterterrorism in and save the American lives. However some government officials warned that response to the
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