Alkarama submits Iraqi torture case to UN

Abdenasser Hassan, a Palestinian from Lebanon, was arrested in Iraq by U.S. military forces in 2003 and eventually released in August 2009 without ever having been tried. He claims to be severely tortured throughout his detention. On 8 March 2010, Alkarama submitted his case to the Special Rapporteur on Torture, requesting his intervention with the U.S. and Iraq. According to Alkarama:

Abdenasser Ahmed Hassan (عبد الناصر أحمد حسن), was born in 1968 and is a Palestinian merchant living in Lebanon. He was arrested on 1 August 2003 in Karah, Iraq by U.S. section #101 of the coalition forces, and led directly to a detention camp on the U.S. military base near Baghdad International Airport and then transferred three days later to Abu Ghraib prison.

During his detention at Abu Ghraib, Abdenasser Hassan was repeatedly tortured by the U.S. forces, and then released on 25 January 2004 when they admitted that he had been “accidentally arrested”.

He was once again arrested on 18 February 2005 by U.S. forces in Iraq and detained in Badush prison, Mosul. Throughout his detention he never underwent any legal proceedings. He then was transferred between Kal’et Souah prison, northern Iraq and Arrassafi prison before being released on 6 August 2009. Two weeks later, on 22 August 2009, Abdenasser Hassan managed to return to Lebanon with the help of the International Federation of the Red Cross and Red Crescent Societies.

Not only during his detention in Abu Ghraib, but elsewhere, Abdenasser Hassan was subject to severe torture by U.S. forces, as well as other inhuman and degrading treatment. He is reported to have been beaten in front of other prisoners and to have electrocuted on several occasions. He was in fact systematically tortured with pepper spray; hooded and deprived of sleep of long periods; exposed to sunlight until his collapse; and held in a freezing cold cell. His torturers are code named “Coungar 5” and “Cougar 6”.

Due to the torture inflicted upon him during his detention, Abdenasser Hassan not only suffers from post-dramatic stress disorder, but also has constant and excruciating physical pains caused by a fracture to his right shoulder and the loss of many of his teeth due to blows to the face; and as a consequence of long periods in handcuff, he now suffers from an acute pain to his right wrist, where his veins were cut by the cuffs.

The UN Human Rights Committee and International Human Rights Monitoring

Read the paper of former member David Kretzmer here.

In the present paper I examine one function of the Committee – consideration of states parties’ reports, under article 40 of the Covenant. The questions I examine are how the Committee itself has perceived its role in fulfilling this function, and to what extent this perception is likely to promote compliance with the Covenant.

Complaints persist as US frees Afghan detainees and starts new rules on night raids

Bagram releases
Under a program started in January, local Afghan leaders can petition for and win release of Bagram prisoners not deemed a threat if area chiefs pledge to monitor them for signs they are aiding the insurgency. The policy is part of a transition for the Afghan government to take control of the controversial detention facility within a year. The U.S. military has in the past quietly freed Bagram detainees it deems no longer a threat, but an official shura ceremony for the program led to pointed criticism of cases of arbitrary detention.

The Obama administration has made some changes at the prison. Last year, the Pentagon assigned all detainees a U.S. military official as a personal representative and set up new military review board to hear arguments for release. All the prisoners were moved last year into a  new, $60 million facility next to the air field.

”There has been some significant improvement,” said Nora Niland, a  human rights expert for the United Nations in Afghanistan. ”The type of torture stories we were hearing about a few years ago, no longer exist  in terms of Bagram.”

In response to an ACLU Freedom of Information Act (FOIA) lawsuit for records related to the detention and treatment of prisoners at Bagram, the Defense Department in January released for the first time a list of the people imprisoned at the notorious detention facility. The list contains the names of 645 prisoners who were detained there as of September 2009, but other vital information including their citizenship, how long they have been held, in what country they were captured and the circumstances of their capture has been redacted, to the dismay of the U.N. for instance.

The ACLU now asked a US Federal Court to order the DoD to give this information, and it demands that the CIA, another  defendant in the lawsuit, process the FOIA request. The CIA has  refused to process the request, claiming it cannot acknowledge whether  it has Bagram-related rendition and interrogation records – even though  its rendition of prisoners to Bagram and its interrogation of prisoners  there is acknowledged and well-known.

Melissa Goodman, staff attorney with  the ACLU National Security Project:

“While the Defense Department took a step in the right direction when it released the names of Bagram prisoners, the Department continues to  withhold every other piece of vital information from that document.  Information such as how long Bagram prisoners have been held, where they were captured and how they ended up in U.S. custody is vital to the  public’s understanding of what is going on at this secretive prison. The Defense Department has released volumes of this kind of information  about Guantánamo prisoners but is baselessly hiding the same basic facts about Bagram prisoners. As long as the government improperly suppresses this information, there is no way to know if prisoners are being held  for excessively long periods of time or if they should even be there at  all, since they may have been seized far away from Afghanistan and  rendered to Bagram or arrested under circumstances that do not warrant  military detention. The court should order the government to stop hiding this vital information.”

New policy on night raids
Days after the chairman of the Joint Chiefs of Staff spoke about the need to reduce Afghan resentment and ill-will towards the  U.S. military, General McChrystal made public a new tactical directive ordering that “night raids must be tactically sound, judiciously used, and as transparent as possible.”

Soldiers are to use night raids only as a last resort and when they provide an advantage over day-time operations. The directive also indicates that forces who conduct raids should be accountable and not rely on secrecy and deniability. This is in direct response to Afghan complaints about the lack of answers, especially from operations run by Special Operations Forces, about the destruction of their property or the detainment of a relative. McChrystal goes as far as to instruct: “If possible, local elders should be incorporated into the process to ensure that the actual facts are related to the local populace.” In other words, soldiers should now understand that their actions will need to be explained, and justified, to the Afghan people.

The increased importance McChrystal places on accountability is also revealed by the directive’s requirements for soldiers to take record of any seized or damaged property and to provide “detailed receipts with point-of-contact provided to local elders or other leaders within the compound, and in the case of any damage, instructions on how to claim compensation.”

The new directive also, importantly, requires that females caught in night raids be searched only by females and emphasizes the importance of international forces to conduct operations in coordination with Afghan national security forces. “ANSF should be the first force seen and the first voices heard by the occupants of any compound entered,” the directive reads. Both of these measures combat Afghan complaints of cultural insensitivities by international forces.

However, Jonathan Horowitz points out the flaws in the new system:

The directive does, however, fall short on a few critical issues:

1. The directive minimizes the real problems that night raids cause for Afghans and, instead, focuses on the negative perceptions night raids create through “myths, distortions and propaganda.” While it is true that minor incidents can snowball into hyperbole, the destruction of furniture, clothes, and vehicles, prolonged detention, and physical and verbal abuse are very real, justified complaints.

2. Nothing in the directive instructs forces to improve how they verify their intelligence and gather evidence. My only hope is that this is in the classified version or in another classified directive. The fact that McChrystal expects his soldiers to take records of confiscated and damaged property does, however, help debunk the myth that night raids are chaotic and violent events that make it impossible for the military to gather detailed witness statements and evidence that could be used to strengthen judicial or administrative proceeding. The fact is that a raid, which often starts off crazed, will often become calm and controlled.

3. The increased responsibilities that the directive gives to Afghan forces in night raids needs to be matched with an increased level of accountability for Afghan forces. Afghan security forces have a reputation for corruption and even torture. If international forces see such abuse, a procedure needs be in place that guarantees the guilty individuals will be held responsible and such behavior will not reoccur.

4. The directive does not prohibit international forces from working with informal unregulated Afghan militias, often called campaign forces, that fall outside the control of the Afghan government. This is a recipe for disaster. These groups are difficult to monitor and have a reputation for abuse. As one former detainee told me, “The actions of these campaigns are defaming American soldiers.”

Case C‑518/07, Commission and EDPS v Germany

From ECJ blog:

By its application, the Commission of the European Communities requests the Court to declare that, by making the authorities responsible for monitoring the processing of personal data outside the public sector in the different Länder subject to State oversight, and by thus incorrectly transposing the requirement of “complete independence” of the supervisory authorities responsible for ensuring the protection of that data, Germany had failed to fulfil its obligations under the second subparagraph of Art. 28(1) of Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

UK Goverment challenges human rights protection of soldiers in war zone

The Times reports that the British Supreme Court will hear on Moday 15 March Ministry of Defence submissions over a landmark ruling that soldiers must be protected by the Human Rights Act when fighting outside their bases in countries such as Afghanistan and Iraq.

Some commanders disagreed when the Court of Appeal ruled in favor of protection last May; Major-General Patrick Cordingley, who commanded 7th Armoured Brigade in the Gulf War and retired from the Army in 2000, said:

“Life is hugely complex in battle situations and commanders cannot be expected to have to worry about every aspect of the Human Rights Act once they’re engaged in operations.”

The ruling also requires coroners to conduct more probing inquests into the deaths of troops in Iraq and Afghanistan, a move that could result in further revelations of military equipment and training failures.

The Ministry of Defence is worried that guaranteeing soldiers the rights and freedoms enshrined in the Human Rights Act when in an inherently dangerous situation would put an unreasonable burden on the Government and would affect the ability of commanders to make decisions that expose their troops to risk.

“British commanders engaged in battle with the Taleban in Afghanistan need to know that the decisions they take in hostile environments will not be challenged at a later date in the courts,” a spokesman for the MoD said.

Extracts of the MoD’s legal argument, which has been seen by The Times, also say:

“Given that soldiers (who are not conscripts) have voluntarily assumed the risk of danger and death that is an intrinsic element of their chosen occupation there would appear to be less ground for imposing a special duty on the State to protect them from risk of death than in respect of other groups of individuals.”

A senior serving military commander said his decisions are already subject to a raft of civil and military laws.

“I owe my soldiers a duty of care wherever they are and I take this incredibly seriously,” he said. “However, the right to life of a soldier in combat is different from that of a soldier not in combat. I hope that the Supreme Court makes it easier for me to do my job, which I do for the nation, not harder.”

HT to Georgetown Law SLB.

US military contractors tied to effort to track and kill militants in Afghanistan and Pakistan

The New York Times reports that under the cover of a benign government information-gathering program, a Defense Department official set up a network of private contractors in Afghanistan  and Pakistan  to help track and kill suspected militants. It is not sure who condoned and supervised the work of Michael D. Furlong. Officials said Mr. Furlong’s secret network might have been improperly financed by diverting money from a program designed to merely gather information about the region.

Moreover, in Pakistan, where Qaeda and Taliban leaders are believed to be hiding, the secret use of private contractors may be seen as an attempt to get around the Pakistani government’s prohibition of American military personnel’s operating in the country.

Furlong hired contractors from private security companies that employed former C.I.A. and Special Forces operatives. The contractors, in turn, gathered intelligence on the whereabouts of suspected militants and the location of insurgent camps, and the information was then sent to military units and intelligence officials for possible lethal action in Afghanistan and Pakistan, the officials said. Some officials said it was unclear whether these operations actually resulted in the deaths of militants, though others involved in the operation said that they did.

Furlong’s operation seems to have been shut down, and he is now is the subject of a criminal investigation by the Defense Department for a number of possible offenses, including contract fraud.

Belgian NGO files legal challenge against Belgian implementation of PNR agreement

On 1 March 2010 the Belgian branch of the Ligue des Droits de L´Homme (the Human Rights league) filed a legal challenge against the domestic legislation of 30 November 2009 implementing the 2007 EU-USA PNR agreement.

ECCHR third party intervention here.
Belgian MEP’s Paul Emire Dupret intervention in the case here.