New Zealand Yearbook of International Law
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Amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.[1]
In COIN [counterinsurgency] environments, distinguishing an insurgent from a civilian is difficult and often impossible. Treating a civilian like an insurgent, however, is a sure recipe for failure.[2]
The accountability of military personnel dealing with detainees is a subject that has been raised in a number of situations. For example, during the armed conflict and occupation of Iraq the abuse and mistreatment of detainees by US and UK troops raised accountability issues concerning the monitoring, reporting and subsequent investigation of those abuses.[3] In relation to the ‘war against terror’ currently being conducted in Afghanistan, the issue of accountability has been raised in the context of, among other things, the International Security Assistance Force (ISAF) handing over detainees to Afghan authorities in situations where there is a grave risk of the detainee being tortured or otherwise ill-treated by the Afghani intelligence service.[4] In the context of peace operations, the accountability of peacekeepers for the treatment of detainees has also been an issue. For example, the Ombudsperson Institution in Kosovo has reported upon the United Nations Mission in Kosovo’s (UNIMIK) lack of accountability in relation to the detention of civilians pursuant to executive orders issued by the Special Representative of the United Nations who heads UNIMIK.[5]
The focus of this paper is modest in that it examines accountability and the detention of civilians by considering four accountability mechanisms for ensuring that detainees are not abused or mistreated: (1) monitoring; (2) reporting; (3) investigating; and (4) remedies. I have focused on these mechanisms because they are applicable across the spectrum of detention situations and contemporary military operations. Also, these mechanisms apply to the treatment of detainees from the point of capture until the detainee is released, transferred or handed over. The mechanisms are also applicable to all military operations where civilian detainees may be taken, including armed conflict and other operations short of armed conflict, such as peacekeeping operations.
In order to address the issues relating to these mechanisms this paper is divided into two parts. Part I establishes the context by defining detention and accountability. The Part then briefly explains the relationship between detention and accountability in governing the treatment of civilian detainees by military personnel. Part II begins by briefly discussing the limitations of applying existing legal regimes that deal with accountability. The Part then examines the mechanisms for ensuring detainees are not abused or mistreated and concludes by suggesting a number of means by which the proposed mechanisms may be reinforced.[6]
The focus of this section is to briefly explain the relationship between detention and accountability in the context of the treatment of detainees by military personnel. Before doing this, it is necessary to make clear how the terms ‘detention’ and ‘accountability’ are employed in this article.
The United Nations General Assembly has agreed that ‘detention’ refers to a person who is ‘deprived of personal liberty except as a result of conviction for an offence’.[7] In order for a person to be deprived of their liberty that person must have a reasonable belief that they are no longer free to leave and that if they were to do so, force may be used to stop them. Consequently, a civilian stopped by a soldier to answer some questions would not be considered to be detained if the civilian demonstrates by their behaviour that they are willing to speak to the soldier. That is to say, a detention does not occur when the civilian has consented to being stopped. However, if the civilian wishes to move on, but has a reasonable belief that the soldier would not permit him or her to do so, then there is, on the face of it, a deprivation of liberty and hence a detention. In such situations, the reasonable belief of the civilian is a question of fact and must take into account all the circumstances of the particular case.[8]
An important element in assessing such circumstances is whether the military have effective control over the detainee. There are two key elements that are relevant in establishing effective control: whether the words or acts of military personnel, as viewed by a reasonable person, would suggest that the individual was deprived of his or her liberty; and whether the civilian believed that he or she was in fact detained. In order to prevent any confusion as to whether a detention has in fact occurred, the military should make it clear by words and acts that the detainee has been deprived of his or her liberty. In situations where the military’s intention is not clear, there is no option but to consider the surrounding circumstances. A further aspect of effective control that is particularly relevant to accountability and detention is that the greater the effective control upon a detainee the greater the military’s accountability.[9] Detention therefore, by implication, requires military personnel to recognise the nexus between consent and effective control in relation to the deprivation of liberty.
It should also be noted that in the context of this paper, the term detention is distinguished from that of arrest. While both arrest and detention focus on the deprivation of liberty, the term arrest is often used in a specific manner to refer to situations where law enforcement authorities, such as police, exercise the power to deprive individuals of their liberty for specific law enforcement purposes such as those found in criminal law.[10] Detention on the other hand is a wider concept that includes depriving an individual of liberty even in situations where they have committed no criminal offence but their detention may be justified on some other ground such as for the safety and protection of others.
The term ‘accountability’ refers to governance in the sense that it reflects primarily the ‘need to attribute certain activities under… law to such actors as a precondition for imposing upon them responsibility under… law’.[11] Marten Zwanenburg, relying upon the ILA study on accountability of international organisations argues that
the broadest contours of accountability… i.e. monitoring and scrutiny, imply certain elements which make such monitoring and scrutiny possible, such as transparency – including access to information – responsiveness and reporting.[12]
Accountability also has a broad reach in the sense that an individual or an organisation may be held accountable for acts or omissions in different forms and at various levels. For example, the forms of accountability for an international organisation such as the United Nations are legal, political, administrative and financial.[13] The levels of the UN’s accountability during UN peace operations extend to Member States, other international organisations, UN staff, and the communities within which the UN undertakes, and in some cases does not undertake, such operations.[14] In relation to organisations, accountability levels also vary between those that are in positions to manage personnel, resources and policies, and individuals that have to put into effect the policies of the organisation.
Accountability is therefore a more general concept than responsibility as the latter usually takes the form of legal sanctions and therefore often rests at a single level, such as a tribunal. Zwanenburg suggests that in every case involving accountability the main questions concern the legal basis for assessing accountability, who may raise accountability, and how accountability may be implemented.[15]
In the military context accountability is both external and internal. External accountability relates primarily to military commanders and their subordinates being monitored and scrutinised by other government agencies, the media, international organisations and interested stakeholders in the general community. Where military operations are conducted overseas an important component of external accountability is that expected by, and given to, the authorities and local population of the host nation. The form this external accountability takes is most often a variant of political accountability. On some occasions, particularly in relation to acts that may lead to allegations of administrative or criminal breaches, the form of accountability may lead to legal responsibility. Internal accountability on the other hand refers to command and individual accountability within the military force. This aspect of internal accountability focuses particularly on the command and control relationships established between commanders and their subordinates and often determines ‘where the buck stops’ in relation to administrative and legal accountability. Commanders are usually expected to be accountable for the acts of their subordinates but may not always be held responsible for those acts. Thus, for example, a commander whose subordinates are accused of abusing a detainee may still be accountable for that abuse notwithstanding the fact that the commander’s only nexus to the abuse was his or her position in the chain of command. Accountability in this context might require the commander to explain to his or her superiors the steps taken to ensure that incidents of abuse or mistreatment did not occur by personnel in his or her command.
As a matter of law, it must be accepted that a civilian detained by a military force is in the hands of the State of the force that detained him or her.[16] Consequently, it is clear that as a general principle the State is ultimately accountable for those acts or omissions that go beyond the legal authority of its military forces. The accountability of a State for the actions of its military forces may also lead to responsibility in certain circumstances. For example, the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts provides that the wrongful acts of any State organ (thus military forces), including those of individuals belonging to that organ ‘is attributable to the State under international law; and constitutes a breach of an international obligation of the State’.[17]
At the more tactical level, in relation to taking and handling detainees, the accountability of military personnel for the treatment of detainees will be sharpest during two phases: (1) at the point of detention; and (2) during detainees’ movement from initial custody to a more permanent facility.[18] During each of these phases the extent of accountability will generally vary depending on two factors: first, the degree of effective control a military person or unit has over the detainee, and second, the duration of the detention. Thus, the greater the degree of effective control and duration of detention, the greater accountability will be expected of the military. In circumstances where the military no longer has effective control over a detainee because that detainee has been, for example, released, the accountability for the detainee would prima facie cease for those matters that did not arise from the detention. Thus, for example, if the detainee was injured through the negligence of the military, the military might be accountable for providing on-going medical assistance for treating that injury after the detainee has been released. If the detainee has been handed to local authorities, however, and is no longer in the effective control of the military that detained him or her, it is difficult to see how that military force would be accountable for the ongoing treatment of the detainee at the hands of local authorities. In other words, once effective control over the detainee is lost there is a corresponding loss of accountability.
Based on the above discussion, the notion of military accountability in relation to detainees, for the purposes of this paper, relates to the extent to which military forces are or should be subject to, or should exercise, forms of internal and external scrutiny and monitoring in relation to detainees that are in the effective control of the relevant military force or international organisation.[19] Using this line of enquiry as a foundation we now turn to examining both the legal framework that governs accountability and the key mechanisms and means to enhance the accountability of military personnel for the treatment of civilian detainees.
The legal regimes that are relevant to the accountability of military personnel for the treatment of civilian detainees are located in both international and domestic law. International legal regimes that are relevant to the accountability of military forces for the treatment of detainees are found primarily in international humanitarian law (IHL),[20] international human rights law (IHRL),[21] and international criminal law (ICL).[22] In domestic law, the applicable law of the host State and that of the troop contributing State also determine the accountability of military forces in relation to their treatment of detainees. Unfortunately, the application of these legal regimes to the treatment of detainees by military forces is made difficult by the fact that there is no single regime which provides a clear, consistent and coherent framework that can be applied as a matter of law across the spectrum of contemporary military operations. While it is true that Geneva Convention (IV) relating to the Protection of Civilian Persons in Time of War has a number of provisions concerning the rights and obligations of military personnel taking and handling detainees, those provisions only apply as a matter of law to armed conflict situations or during a belligerent occupation.[23]
Even in relation to a fundamental prohibition, such as the prohibition against torture, cruel and inhuman treatment, debates can arise. For example, the question of whether the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) applies as a matter of law to all situations where military operations are being conducted by a State or only in situations where a State is conducting operations in a territory under its jurisdiction[24] is a fundamental question that goes to the heart of identifying the application of that Convention. The extent of the obligations for States Parties to CAT in circumstances where their military forces are operating in another State with the consent of that State and pursuant to a Security Council resolution was recently the subject of a submission by the Canadian Government in relation to litigation in Canada. In the case of Amnesty International Canada and British Columbia Civil Liberties Association v Chief of Defence Staff for the Canadian Forces, Minster of Defence and Attorney General of Canada, the Canadian Federal Court had to decide whether there were grounds for review regarding the conduct of Canadian Forces with respect to detainees held by the Canadian Forces in Afghanistan, and the transfer of those individuals to Afghan authorities.[25] In an affidavit submitted on behalf of the Respondents, Christopher Greenwood argued that CAT did not apply to the Canadian Forces serving in Canada because it could not ‘seriously be asserted that any part of the territory of Afghanistan is currently within the jurisdiction of Canada’.[26] While, the Court did not address the particular issue of the application of the CAT in Afghanistan, it seems to me that Greenwood is quite correct to emphasise the importance of the words ‘territory under its jurisdiction’ in article 2(1) of the Convention. As no part of Afghanistan is under Canadian jurisdiction it is difficult to see how as a matter of law the CAT applies to Canadian military personnel serving in Afghanistan.
Another issue that complicates the application of accountability norms to military operations is debate surrounding the nature of the relationship between IHL and IHRL in their application to military operations. Professor David Kretzmer has spoken of three attitudes or approaches to the issue of applicability: the classic attitude, the rights attitude and the context approach. First, the ‘classic attitude’, often cited by military and political spokespersons, holds that ‘it is difficult enough to ensure adherence to the standards of international humanitarian law and… [tries] to avoid complicating matters by introducing very ‘wishy-washy’ standards of human rights’.[27] The classic attitude sometimes also focuses on the fact that human rights law has been developed to focus predominantly on peaceful situations and not on applying to situations of armed conflict. Second, the ‘rights attitude’, often cited by human rights activists, holds that ‘human rights are universal and should therefore apply in all situations, at all times, and certainly on the battlefield’.[28] Third, the ‘context approach’ distinguishes ‘between different situations in armed conflict where, in certain situations, we would rely on international humanitarian law, and in other situations, we import supplementary human rights law’.[29]
While the ICJ has held that human rights standards continue to apply during armed conflict, there is still a debate as to how these standards are to be interpreted and applied to situations of armed conflict.[30] Clearly, lawyers and policy advisers, in order to remain faithful to fundamental rules of legal interpretation, must continue to look at each treaty to see whether as a matter of law that treaty applies and then consider the extent of the obligation created by the relevant treaty being relied upon.
The recent decision of the Grand Chamber of the European Court of Human Rights (ECHR) in the joint cases Behrami and Saramati has added another dimension of complication concerning the accountability of States for the actions of their military forces when serving on operations that have been authorised by a binding Security Council resolution. In that case the Court found that the European Human Rights Convention
cannot be interpreted in a manner which would subject the acts and omissions of contracting parties which are covered by the UN Security Council and occur prior to or in the course of such norms to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in their field including… the effective conduct of its operations.[31]
Similarly, in the recent UK case of Al-Jedda the House of Lords found that the application of the UK Human Rights Act was subject to the application of binding Security Council resolutions. The House of Lords recognised
there is a clash between on the one hand a power or a duty to detain exercisable on the express authority of the Security Council and, on the other, fundamental human right which the UK has undertaken to secure to those… within its jurisdiction.[32]
One effect of these findings relates to the levels of accountability the military forces of Member States are subjected to when those forces are serving with international organisations. Conversely, such cases also raise the issue of the accountability of international organisations for the acts of military forces serving under their command or control or pursuant to that organisation’s authorisation.
The fact that many norms that would be applicable to establishing minimum standards of accountability to the treatment of detainees during military operations are found in instruments that are not binding as a matter of law upon States further adds to the difficulty of establishing norms that are certain and consistent. For example, many of the norms concerning the treatment of detainees found in IHRL are not located in treaties but in declarations by organisations such as the UN General Assembly.[33] Thus, debates arise as to the extent a State must comply with principles for the ‘protection of all persons under any form of detention or imprisonment’ stated in a GA resolution rather than in a treaty that is binding upon that State.[34] In such cases, the norms articulated in the instrument may only be recommendatory and therefore not binding upon a State. Rosalyn Higgins explains the situation thus:
We need to look at the subject-matter of the resolutions in question, at whether they are binding or recommendatory, at the majorities supporting their adoption, at repeated practice in relation to them, at evidence of opinio juris. When we shake the kaleidoscope and the pattern falls in certain ways, they undoubtedly play a significant role in creating norms.[35]
Not only do these instruments play a significant role in creating norms, they also play a significant role in establishing minimum best practice standards that may not reach normative status but are useful to apply to circumstances where there are gaps or limits in treaty law. For example, in relation to the treatment of detainees, article 131 of Geneva Convention IV stipulates that ‘every death or serious injury of an internee, caused or suspected to have been caused by a sentry, or… any other person,… shall be immediately followed by an official enquiry by the Detaining Power’.[36] However, there is little or no guidance in that Convention as to what the enquiry should entail. Other instruments, however, may usefully supplement that provision by reinforcing the requirement of ‘official enquiry’ with: the need for the enquiry to be conducted impartially;[37] minimum requirements for effective investigations and documentation of torture and other cruel, inhuman or degrading treatment of punishment, reporting requirements;[38] and safeguards to prevent against bias.[39]
The difficulties of identifying applicable international norms to apply to military operations is further compounded by the fact that military forces must also consider the rights and obligations arising pursuant to the application of both the domestic laws of the host State and their own State. The application of host State law to the establishment of accountability standards is governed to a very large extent by agreements that military forces enter into concerning privileges and immunities. For example, during UN peace operations, the accountability regime for UN peacekeepers is governed by the Status of Force Agreement (SOFA) signed between the UN and the host State. Generally, such UN SOFAs provide for, among other things, the applicability of the host State laws,[40] the extent of criminal and civil jurisdiction of the host State,[41] and limits as to the liability of the UN for acts or omissions of UN personnel serving in the host State.[42] During non-UN peace operations, accountability mechanisms may be created pursuant to a treaty or other agreement. For example, in relation to the Solomon Islands the treaty entered into between the Government of the Solomon Islands and the States contributing peacekeepers to operate in the Solomon Islands, dealt with matters of accountability by, among other things, stipulating: the status of the military and police participating in the forces deployed to the Solomon Islands;[43] jurisdiction of the Solomon and Visiting Contingent’s authorities over the military and police;[44] and the claims regime to be followed by the Solomon Islands and the Visiting Contingents.[45] On some missions SOFAs governing specific aspects of the operation, such as detention, may also be entered into. For example, in Afghanistan a number of countries have entered into agreements to govern the rights and obligations concerning detainees transferred by the troop contributing States to the Government of Afghanistan.[46] The agreement between the Government of the UK and the Government of Afghanistan, by way of example, stipulates requirements for responsibilities of participants in relation to transferring detainees,[47] access to detainees once transferred,[48] and record keeping and notification of detainees who have been transferred to the Afghan authorities.[49]
In relation to the application of troop contributing States’ domestic law there are at least two key issues relevant to the accountability of military personnel in relation to the treatment of detainees. First, military forces must focus on developing their own accountability regimes for ensuring that civilian detainees are not abused or mistreated. This focus is essential particularly in circumstances where military forces are operating in areas where local and other international organisations that may be relied upon to support accountability regimes are unable to function effectively because of the lack of security or resources. Flowing from this first issue, is the second, which is the need for States and international organisations to work together to ensure that the accountability mechanisms that are developed are clear, coherent and consistent with minimum international standards. In other words, if each State has its own accountability standards and there is no systematisation or formularisation of those standards, there is considerable risk that the standards will be applied inconsistently between military forces, which in turn would lead to, among other things, uncertainty in relation to the exercise of accountability and the remedies available for breaches.
One approach to dealing with this complicated legal framework of identifying the rights and obligations of military forces, and assisting States to develop clear, concise and consistent accountability mechanisms and standards for their military forces, is to create a special legal regime that has, among other things, clear, concise and consistent provisions that spell out the mechanisms and, where appropriate, the means for ensuring that military forces are accountable for their treatment of detainees. Such a regime would bring together relevant accountability provisions from both international and domestic law thus formalising and systematising key norms applicable to taking and handling detainees.[50] However, in light of the fact that there are ongoing military operations during which detainees are being taken, there is an immediate need to explore and reflect upon some of the key provisions that should form the basis for such a special detention regime. Thus, what follows is an examination of the key aspects of four mechanisms to enhance accountability and the means that may be used to reinforce these mechanisms.
There are two phases of detention that are most relevant to the accountability of military personnel for the treatment of civilian detainees. The first phase commences from the moment the person is detained and is complete when the detainee is either released, transferred or handed over by the person who detained him or her. Transfer in this context refers to those situations where military personnel pass a detainee on to other members of the force or to other coalition forces. Handover on the other hand, occurs when military personnel pass a detainee to local authorities. The distinction between transfer and handover is important because it sets boundaries for accountability. In situations of transfer it is more likely for accountability requirements of the detaining military force to continue because the whole force might be subject to the same command and control arrangements. Custody of the detainee by the military, in a very broad sense, remains ongoing. In a handover the accountability of the detaining military force may not be as well established or defined because of the inherent sovereign jurisdictional powers of the local authorities.
The second phase commences when the detainee is transferred from one coalition force to other military units or handed over to local authorities for such purposes as further questioning or ongoing detention. That phase will end once the detainee has been released or has been handed to local authorities. In both these phases the following accountability mechanisms are relevant: monitoring the treatment of detainees; reporting cases of abuse and mistreatment of detainees; investigating cases of abuse and mistreatment of detainees; and providing remedies for the abuse and mistreatment of detainees.
The term ‘monitor’ as used here means ‘something that serves to remind or give warning’.[51] That is to say, it is a mechanism that addresses the issue of accountability by providing, at the very least, a warning as to whether detainees are vulnerable to abuse or mistreatment. There are at least two key aspects to monitoring the treatment of civilian detainees. First, it is important to monitor the behaviour of those military personnel engaged in dealing with detainees. The focus of this aspect of monitoring is to provide military commanders with some warning as to whether their personnel are likely to abuse or mistreat detainees. On this issue, Philip Zimbardo’s comments relating to the Abu Ghraib scandal are worth reflecting upon because they demonstrate how quickly a lack of effective monitoring of behaviour can lead to the abuse and mistreatment of detainees:
Why did the bad things happen only at night shift at Abu Ghraib? In three months there was never a senior officer ever went down to that dungeon [sic]. Why? Because it was filthy, rats running around, there were electricity blackouts, there was no water, there were a thousand prisoners and many naked, the place stunk and it was dangerous. Prisoners and guards were being killed by these mortar attacks. And so you have on the one hand military intelligence, CIA, telling these eight young men and women do whatever you have to do to prepare them for interrogation. On the other hand you have nobody higher up saying we shall do no harm, we shall honour the Geneva Convention, we want to maintain the dignity of the American military. So the push they got was -- do bad, nobody's looking, the cat's away and we will let the mice play.[52]
One way of achieving the required levels of behaviour monitoring is to require all military personnel to undergo professional ethics training which ‘would equip them with a sharp moral compass for guidance in situations often riven with conflicting moral obligations’.[53]
The second aspect of monitoring is to focus on the actual treatment of detainees and the conditions in which they are held. Monitoring the behaviour of military personnel must at the very least be undertaken by other military personnel. It is the responsibility of all military personnel to monitor the behaviour of colleagues so as to ensure that the values and military ethos of their force are not undermined. This monitoring, however, will only be effective if all military personnel receive, at the very least, appropriate training and instruction as to what is prohibited treatment.[54]
Furthermore, wherever possible internal monitoring must be supplemented by external and independent monitoring as well. External and independent monitoring can only be carried out effectively if detainees are held in ‘regularised facilities’ where the conditions of their detention and their treatment may be observed by organisations such as the ICRC.[55] Thus institutions such as the ICRC have an important role to play in maintaining independence and transparency by ensuring that the treatment of detainees meets internationally accepted standards.
In relation to the monitoring of the treatment of detainees and the conditions of their detention a survey of the provisions contained in some of the international instruments mentioned above permits the following points to be made: detention facilities should be monitored by qualified and experienced military personnel who are appointed by a competent authority;[56] and visits by those appointed to monitor detention facilities should be regular, and where possible unannounced.[57]
The 2004 ICRC report on the treatment of detainees in Iraq noted:
In most cases, the allegations of ill-treatment referred to acts that occurred prior to the internment of persons deprived of their liberty in regular internment facilities, while they were in custody of arresting authorities or military civilian intelligence persons. When persons deprived of their liberty were transferred to regular internment facilities such as those administered by military police, where the behaviour of guards was strictly supervised, ill-treatment of the type described in this report usually ceased.[58]
Treatment during detention was ‘attributed to the brutality …[and] to the lack of supervision of battle group units’[59] (that is, the soldiers engaged in actually carrying out the detention). The ICRC also reported that following detention, persons deprived of their liberty ‘were ill-treated sometimes during transfer from their place of arrest to their initial internment facility’.[60] According to the ICRC, ill-treatment of detainees by ‘CF [Coalition Forces] personnel during interrogation was not systematic, except with regard to persons arrested in connection with suspected security offences or deemed to have an “intelligence value”’.[61] It is therefore essential that all military personnel understand that they will be held accountable, and where appropriate responsible, for ensuring that members of their units or other units they are serving with do not abuse or mistreat detainees. In this context it is also of fundamental importance that military personnel know that their treatment of detainees has political ramifications and that their commanders will review their actions. The command and control links in monitoring the behaviour of military personnel accountable for detainees is therefore of fundamental importance.[62]
The term ‘report’ as used here means ‘to give, or render a formal account or statement’ or ‘to write an account of (an event, situation, etc)’.[63] In the context of this article the focus of the mechanism of reporting concerns allegations of, or actual, abuse or mistreatment of detainees. There are two aspects of reporting that are relevant here. First, the requirement to report on the chain of custody matters arising from the detention of a civilian. In other words, from the moment a civilian is taken into custody until the moment the military force loses effective control of that detainee, there must be adequate reporting of such matters as: the reason for the detention; the evidence available to sustain any allegations against the detainee; the conditions in which the detention occurred; any injuries suffered by the detainee; and any property confiscated. As the detainee moves through the chain of custody that report should be updated with information such as: the health of the detainee; who questioned the detainee and for what purpose; and who had custody of the detainee. Clearly, these records must be formalised to ensure that there is a permanent record capable of being relied upon if there are any subsequent allegations of abuse or mistreatment of the detainee. What the military must avoid is the criticism that ‘detainee reporting lacked accountability, reliability and standardization’.[64]
The second aspect of reporting relates to the reporting of any allegation of, or actual, abuse or mistreatment of detainees. In this context, any military person who has witnessed or has evidence of abuse or mistreatment has a duty to make a report to his or her superiors or any other appropriate person such as a legal officer. A detainee, a member of his or her family, or any other person (such as his or her legal counsel, religious adviser or medical adviser) may also make a complaint concerning treatment.[65] Needless to say, such complaints should be kept confidential,[66] in the sense that the identity of the complainant should only be disclosed in the interest of justice and fairness. Any report must be formalised through the chain of command not only in the interest of the detainee but also in the interest of the individual accused of committing the abuse or mistreatment.
The term ‘investigation’ is used here to mean a process by which the investigator not only obtains and clarifies the facts but also identifies and recommends measures to prevent a recurrence of the events that led to the investigation. Key aspects of investigations are that they must: be prompt and impartial;[67] be effective in the sense that they document and establish relevant components of the allegations; and, where appropriate, recommend both steps to ensure as far as possible that similar situations do not arise, and remedies are open to the abused or mistreated detainee and/or the detainee’s family. It should go without saying that the person who conducts the independent investigation should be competent to deal with the issues that he or she is likely to be confronted with.
The process of investigation will vary from case to case. In some cases it may be appropriate to instigate an initial or quick investigation to establish whether there is a case to answer. However, it may be appropriate to have a much more detailed investigation. Factors that are important in choosing between a quick investigation versus a more detailed one include: whether the detainee died or suffered serious injury from the alleged abuse or mistreatment; the number of incidents and detainees involved; and the nature of the evidence available. Clearly, the person or persons appointed to conduct the investigation will also vary in accordance with the circumstances of the alleged abuse or mistreatment. If the allegations are of a criminal nature then it would be appropriate for, at the very least, suitably qualified law enforcement officers to conduct the investigation. In some cases it may also be appropriate to have concurrent investigations – that is to say, one investigation conducted by law enforcement officers and another conducted by the military chain of command. Concurrent investigations are particularly useful in circumstances where the military wishes not only to assess criminal responsibility but also wishes to develop more effective processes for ensuring that detainees are not abused or mistreated. All investigations must be timely and thorough regardless of who conducts the investigation.
Aspects of investigations that often pose considerable angst are those of legitimacy and transparency. The issue of legitimacy in this context relates specifically to who makes the appointment or appointments of investigating officers – whether they be law enforcement officers or otherwise; and the extent of the powers they are given to undertake the investigation. The issue of transparency includes whether the interviews, evidence gathered, and conclusions drawn are open to outside scrutiny.
The adequacy of investigations of the treatment of detainees at the hands of British soldiers serving in Iraq has been dealt with by UK courts. In the case of Al-Skeini,[68] the High Court was critical of the failure of the British authorities to investigate the deaths of a number of Iraqis at the hands of British soldiers serving in Iraq. The High Court recognised that while there were a number of impediments facing the British authorities in carrying out investigations, the investigations undertaken ‘would not pass muster… [because] they were not independent; they were one-sided; and the commanders concerned were not trying to do their best’.[69] The High Court stated that investigations relating to the death of a civilian at the hands of State agents must comply with procedural obligations. While it is true that the High Court was commenting on investigations relating to death, the points made are also relevant to investigations into allegations of abuse or mistreatment of civilian detainees by military personnel. Thus the procedural obligations of an investigation are:
official, ie initiated by the state; timely, ie in both initiation and completion; independent, ie both formally and practically, from those implicated in the events; open, ie to a sufficient element of public scrutiny as well as to the involvement of the next-of-kin; and effective, ie capable of achieving objective accountability of the state agents and thus of leading, as appropriate, to conclusions about all the circumstances, including the background issues… as well as about responsibility… and the identification and punishment of those responsible.[70]
In relation to the situation of detainees at Guantanamo Bay, the Report by a number of Human Rights Special Rapporteurs stated, among other things:
Investigations into allegations of torture or CIDT [cruel, inhuman and degrading treatment] were conducted by different parts of the executive branch, and lacked impartiality….The Special Rapporteur takes the view that the lack of any independent investigation into the various allegations of torture and ill-treatment at Guantánamo Bay amount to a violation of the obligations of the United States under articles 12 and 13 of the Convention against Torture. He therefore agrees with the European Parliament’s call on the United States administration to “allow an impartial and independent investigation into allegations of torture and mistreatment for all persons deprived of their liberty in US custody”. [71]
The term ‘remedies’ is used in two senses here: first, it refers to appropriate remedies that must or should be taken to avoid any further situations of abuse or mistreatment occurring; and second, it refers to remedies that are available to the detainee, or where appropriate his or her family, for the abuse and mistreatment suffered.
A completed investigation should outline the remedial steps that are required to stop any further instances of abuse. The Aitken Report, a recent report investigating cases of deliberate abuse and unlawful killing by British soldiers serving in Iraq in 2003 and 2004, is an example of an investigation which spells out measures to prevent abuse not only in the context of Iraq but on any military operation undertaken by British Forces.[72] The remedial measures outlined in that Report include: developing doctrine and training concerning the treatment of detainees; and improving the military criminal justice system.[73]
In relation to the remedies available to the detainee, or, where appropriate, his or her family, much will depend upon the severity of the abuse and mistreatment. At the very least the detainee is entitled to know the results of the investigation and whether any criminal, disciplinary or other actions were taken against the person alleged to have committed the abuse and mistreatment. For minor cases of abuse or mistreatment remedies may include the person who committed the abuse and mistreatment, and that person’s senior commander, making a formal apology to the detainee, his or her family and the local community. For more serious cases of abuse and mistreatment the remedies include an enforceable right to fair and adequate compensation;[74] means for full medical care and rehabilitation;[75] and restitution for damages. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violation of International Human Rights Law and Serious Violations of International Humanitarian Law provide a useful benchmark for considering the sorts of issues relevant to remedies for the abuse or mistreatment of detainees. The Principles state that:
11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law:
(a) Equal and effective access to justice;
(b) Adequate, effective and prompt reparation for harm suffered;
(c) Access to relevant information concerning violations and reparation mechanisms. [76]
For victims of human rights violations, Amnesty International has argued that the ‘right to redress or reparations’ include the following remedies:
• Restitution, for instance release (of detainees and prisoners), restoration of legal rights and return of property;
• Compensation, including for physical or mental harm, lost opportunities, harm to reputation or dignity and legal and medical costs;
• Rehabilitation, including medical and psychological care, legal and social services, and social reintegration;
• Satisfaction, including cessation of continued violations, disclosure of the truth (without causing further harm), search for victims who have been forcibly disappeared or killed, and an apology for the wrong done; and
• Guarantees of non-repetition, including steps to ensure effective civilian control of military and security forces and that all civilian and military proceedings abide by international standards of due process, fairness and impartiality, and strengthening the independence of the judiciary.[77]
In summary, the following comments may be made regarding the use of the mechanism of monitoring, reporting, investigating and providing remedies. First, it is an obligation throughout the chain of command for military personnel to monitor the behaviour of their colleagues in relation to the treatment of detainees. In situations where there is a suspicion of a detainee being abused and mistreated the matter must be reported to the relevant authorities. Second, there must be a clear chain of command for ensuring that the treatment of detainees meets the standards stipulated in law and policies. Third, at all levels of detainee handling accurate records must be kept and these records are to be maintained for a reasonable period of time even after the detainee has been released. Fourth, confidentiality regarding complaints and investigations must be maintained in accordance with established legal principles. Fifth, investigations must be official, timely, independent, open and effective. Sixth, remedies must be effective, adequate and accessible.
Having raised some of the key issues that must be addressed in order to ensure that the accountability mechanisms of monitoring, reporting, investigating and remedying the abuse and mistreatment of civilian detainees in the hands of the military, it is apposite to discuss briefly some of the key means that are useful to reinforce these mechanisms.
One means to reinforce the mechanisms of monitoring and reporting is to transmit electronic forms using communications technology, such as a Personal Digital Assistance Mobile Phone (PDAMP) or even a mobile phone to relay updated and relevant information concerning a detainee from the moment the detainee is taken into custody until such time the detainee is released or handed over to local authorities. The electronic form would include such information as the name and condition of the detainee, and the reason for taking the detainee, the identity of the person who took the detainee and any evidence collected. If the PDAMP or the mobile phone has a camera, a photo of the detainee could also be relayed with the electronic form. The information transmitted would enhance accountability by providing real time situational awareness to commanders as to the progress and condition of the detainee as he or she moves through the chain of custody. Commanders could also use the electronic form generated on the PDAMP or the mobile phone to transmit relevant details of the detainee to other stakeholders concerned with the treatment of the detainee such as local authorities and international organisations such as the ICRC.
Another means of reinforcing the accountability mechanisms, particularly that of monitoring and reporting on the treatment of detainees, is to appoint a detainee visiting officer whose tasks include: speaking to the detainees about their treatment; inspecting the detention facilities; speaking to military personnel who are engaged in dealing and liaising with other organisations and individuals who are also concerned with the welfare of detainees. Such an appointment was made by Commander INTERFET (COMINTERFET) on 21 October 1999. COMINTERFET in his Orders for Force Detention Centres appointed a visiting officer for each INTERFET detention centre[78] and stipulated that a visiting officer shall:
a) Visit and inspect the force detention centre in respect of which the visiting officer is appointed at such times or at such intervals as COMINTERFET directs;
b) As far as practicable, visit all detainees at that force detention centre and hear any complaints or requests they wish to make;
c) Furnish a report to COMINTERFET after each visit and inspection made pursuant to paragraph a; and
d) Make a record of any complaint made to the officer by a detainee and bring that complaint to the attention of COMINTERFET.[79]
The detainee visiting officer made daily visits to the INTERFET Force Detention Centre and reported in writing daily to COMINTERFET. Each report was read by and where appropriate commented upon by COMINTERFET. Where necessary, COMINTERFET also directed the visiting officer or his staff to remedy problems raised by the visiting officer. The visiting officer system made clear to all stakeholders that COMINTERFET was very serious about the treatment of detainees.[80]
Another approach to monitoring and reporting behaviour towards detainees is to appoint a military person to oversee the treatment of detainees at local detainee collection points. This system of appointing a ‘warden’ was commented upon favourably by the general officer who led the inspection of Combined Forces Command – Afghanistan (CFC-A) Area of Operations detainee operations. In the Report of Inspection of 26 June 2004, the officer reported that ‘[t]hose forward collection points that have a “warden”, a single point of contact who is in charge of these operations at the local collection point, are run well’.[81] That Report recommended, among other things:
Regional Brigade and Component Commanders should appoint commanders in their region responsible for the safeguarding and care of detainees while detained in collection points in their areas of operation. Base commanders should in turn appoint and OIC [officer-in-charge] or NCOIC [non-commissioned officer-in-charge] as the ‘warden’, or single point of contact who is in charge of detainee operations at the local collection points.[82]
Medical personnel, lawyers, religious advisers and interpreters also play important roles in monitoring and reporting on the treatment of detainees. For example, medical personnel should be permitted to evaluate
compliance with the rules concerning the physical environment, hygiene, accommodation, food, exercise and medical services, as well as any other aspect or conditions of institutional life that affect the physical and mental health of… [of the detainee].[83]
In both Kosovo and East Timor military legal officers have regularly reviewed the treatment of detainees to ensure detainees were being treated properly.[84] Legal officers, particularly those who have been appointed to represent the interests of the detainee, religious advisers and interpreters should also be provided with formal opportunities to report on the treatment of detainees. These opportunities may include interviews with relevant commanders and representatives of organisations who are mandated to look after the welfare of detainees. Medical personnel and legal officers are also useful professions to rely upon to provide advice relating to investigations of abuse or mistreatment.
Other options available to the military in monitoring and obtaining reports on the treatment of detainees are to encourage detainees to create a ‘detainee committee’; appoint a ‘military review board’; and to invite or permit appropriate external agencies to speak with detainees and inspect facilities. Detainee committees would provide commanders and detainees with a central point to address general issues concerning treatment. The appointment of a military review board, particularly in situations involving the detention of hundreds of detainees would assist in providing at least a central point for consistent application of the mechanisms throughout the area of operations. Furthermore a review board would also ensure that other means of enhancing accountability, such as visiting officers and wardens, fulfil their obligations in a competent manner. It should not be overlooked that such review boards would also provide a central point to analyse trends in behaviour throughout the detainee handling and management systems. In this context, the Aitken Report accepts that
[w]ith all their other duties, the commanders on the ground cannot reasonably be blamed for failing to identify what may or may not have been a trend; but a more immediate, effective system for referring… information to others with the capacity to analyse it might have identified such trend.[85]
Inviting or appointing international or local individuals or agencies that are external to the military to monitor and report on the treatment of detainees is an important aspect of ensuring the legitimacy of those mechanisms. The appointment of an Ombudsperson in Kosovo is a good example of creating an office which can provide ‘accessible and timely… review and redress of actions constituting an abuse of authority’.[86] Other relevant characteristics of that appointment include that the ombudsperson ‘shall act independently’,[87] and ‘may receive complaints, monitor, investigate, offer good offices, take preventative measures, make recommendations and advise on matters relating to his or her functions’;[88] and the services offered are free of charge.[89]
Other international organisations that play an important role in ensuring that detainees receive at least minimum standards of treatment include the ICRC, OHCHR, Special Rapporteurs of the Human Rights Committee, and Committees that are set up pursuant to a treaty, such as the Committee Against Torture. The ICRC’s approach of visiting persons deprived of their liberty is common to all countries where the Committee operates. In its Report of February 2004 it expressed that approach as follows:
• The ICRC must have access to all persons deprived of their liberty who come within its mandate in their place of internment.
• The ICRC must be able to talk freely and in private with the persons deprived of their liberty of its choice and to register their identity.
• The ICRC must be authorised to repeat its visits to the persons deprived of their liberty.
• The ICRC must be notified of arrests, transfers and releases by the detaining authorities. [90]
The United Nations system of human rights rapporteurs is also a useful and effective system of independent review of the treatment of detainees. The comments by the rapporteurs who visited the detention facility in East Timor provided the COMINTERFET and his staff with considerable reinforcement that their approach was appropriate to the circumstances faced by INTERFET.[91]
In the interests of legitimacy and transparency serious consideration must also be given to appointing or inviting local human rights organisations or other interested stakeholders to monitor, report on, and investigate the treatment of detainees. The Afghanistan Independent Human Rights Commission, an institution set up pursuant to article 58 of the Afghani Constitution, is an example of an independent national body that has legal competence to undertake, among other things, the monitoring of the conditions of detainees in Afghanistan.[92] A benefit in using local human rights organisations or other local stakeholders as a means of enhancing accountability mechanisms is the fact that it adds to the local community’s understanding of human rights and accountability.
In relation to the means for reinforcing remedy mechanisms, it is important that military commanders ensure that recommendations and directions derived from investigations are put into effect. In this context, the setting up of independent bodies to ensure a particular remedy has been given effect is an option that must be considered particularly in situations where there might be a culture to resist change. In other words, it is one thing for an investigation to make a recommendation or to give a direction; it is another thing to put it into effect. A good example of such an independent body being created is that of the Detainee Operations Oversight Council which, among other things, reviewed the findings of 12 reports conducted by US authorities concerning the treatment of detainees during the conflicts in Iraq and Afghanistan and identified
204 corrective actions that fall within the scope of the [US] Army’s statutory responsibilities for detainee operations policy and interrogations procedures… These corrective actions comprise of the Army’s Action Plan for Detainee and Interrogation Operations.[93]
Having briefly discussed how appointing individuals or organisations within or outside the military can reinforce the accountability mechanisms of monitoring, reporting, investigating and providing remedies, it is necessary to reflect on some key points concerning the use of these means. First, individuals and organisations reinforcing the accountability mechanisms must act with a sense of responsibility and undertake to fulfil their functions impartially. It is only on this basis that the interests of both the detainee and the military will be met. Second, where an individual or an organisation is fulfilling their role on the basis of law, for example, pursuant to a treaty, the individual or organisation must not exceed their authority. In other words, they must ensure that they do not jeopardise the legitimacy of their appointment or office by acting beyond the scope of their powers or dishonestly. Thus, for example, they must be scrupulous in gathering evidence and must not act as zealots. Third, it must be accepted that in circumstances of armed conflict imperative reasons of security may justify limitations as to the number of individuals or organisations that visit detainees. Fourth, it is fundamental that the individual or organisation is competent. That is to say, competent both in the fact that they are more than capable of dealing with the issues before them, but also competent in the sense of having a formal or legal basis for undertaking their role. Fifth, it is particularly important in relation to monitoring, reporting and investigation, that some rigour is adopted in identifying which external agencies have access to detainees. Not only are there issues concerning privacy and protecting the interests of, among others, the detainee and the person accused of abusing or mistreating the detainee, but there are also issues concerning security and the allocation of limited resources. This has to be balanced, however, with the need for military commanders to ensure that they are not seen as being less than open or transparent regarding the treatment of detainees. Thus, in Kosovo, the US decided that they would have
an ‘open door policy’ for monitoring agencies. Any international organisation that wanted to tour the Bondsteel detention facility was allowed to do so. This policy helped clarify rumours of detainee mistreatment and mollify critics of the operational detention program.[94]
Military forces should therefore reflect carefully on what means are the most appropriate to use when seeking to enhance accountability mechanisms.
In summary, therefore, the key aspects of the means used to reinforce accountability mechanisms must: (a) be formalised; (b) consist of both internal and external appointments and agencies so as to enhance legitimacy and transparency; and (c) ensure that those individuals or agencies appointed acknowledge their responsibilities.
This study of detention and accountability has sought to examine how the accountability of military personnel can be enhanced by monitoring the treatment of detainees, reporting and investigating alleged and actual abuse and mistreatment of detainees, and providing remedies for the abuse and mistreatment of detainees. A key way of achieving principled practice in the context of dealing with civilian detainees is to ensure that the notion of accountability is not seen as a negative concept and that it is firmly founded in a formalised and systematic normative framework that is effective and efficient in protecting the needs of both the military and civilian population.
I have tried to demonstrate that by combining law and practice it is possible to develop norms that not only establish better accountability mechanisms and means, but also ensure that detainees are not abused nor mistreated. At the end of this study a number of conclusions can be suggested.
First, there is a need to define detention during military operations in a manner that provides a basis for holding military forces accountable for the treatment of civilian detainees. Any such definition must include the notion of the nexus between consent and effective control in relation to the deprivation of liberty. Military forces are accountable for any abuse or mistreatment of a detainee under their effective control.
Second, the principle of accountability in relation to detention must be sufficiently refined so that it takes into account the needs of the military as well as those of the detainee. Accountability therefore relates to the extent to which military forces are or should be subject to, or should exercise, forms of internal and external scrutiny and monitoring in relation to those detainees that are in the effective control of the relevant military force or international organisation.
Third, at both the point of capture and while detainees are held in custody it is essential that the mechanisms of monitoring, reporting, investigating and providing remedies are formalised and systematised into the detention framework being applied. The means of reinforcing these mechanisms through the appointment of individuals must also be formalised and systematised.
The above analysis of mechanisms and means should provide a firm basis for further reflection on how best to incorporate fundamental principles of accountability into a special detention regime if relevant stakeholders agree that such a regime is required. I hope that by demonstrating the importance of mechanisms and means to enhance and enforce the accountability of military forces in taking and handling detainees, I have provided a foundation for others to consider which provisions must be incorporated into a special detention regime, which will leave no doubt as to the levels and extent to which military personnel will be held accountable.
[∗] Senior Lecturer and PhD candidate, Melbourne Law School, The University of Melbourne. My thanks to Professor Stuart Kaye, Dr Wendy Larcombe, John Tobin, Carrie McDougall and the anonymous reviewer for their comments on earlier versions of this paper. I also acknowledge Dr Ada Cheung who has over the years brought to my attention a number of commentaries regarding accountability. I remain grateful for the support of Ms Liz Saltnes.
[1] Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 245 at 244.
[2] US Army and Marine Corps, Counterinsurgency, Field Manual 3-24 (2006), paras 7-40.
[3] In relation to the US, see for example, Steven Strasser (ed), The Abu Ghraib Investigations: The Official Reports of the Independent Panel and the Pentagon on the Shocking Prisoner Abuse in Iraq (2004); Amnesty International, ‘Iraq Memorandum on Concerns Relating to Law and Order’ (2003), online: <http://www.amnesty.org/en/library/
info/MDE14/157/2003> at 21 February 2008; and Global Security.org, ‘Report of the International Committee of the Red Cross on the Treatment by Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment, and Interrogation’ (2004), online: <http://www.globalsecurity.
org/military/library/report/2004/icrc_report_iraq_feb2004.htm> at 21 February 2008 (hereinafter ICRC 2004 Report on Iraq). In relation to the UK, see for example, UK Ministry of Defence, ‘The Aitken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004’ (2008), online: <http://www.mod.uk/NR/rdonlyres/7AC894D3-1430-4AD1-911F-8210C3342CC5/0/ aitken_rep.pdf> at 21 February 2008 (hereinafter The Aitken Report). See also the International Commission of Jurists, ‘Memorandum on International Legal Framework on Administrative Detention and Counter-Terrorism’ (2005), online: <http://www.icj.org/
IMG/pdf/Administrative_detent_78BDB.pdf > at 21 February 2008.
[4] Amnesty International, ‘Afghanistan Detainees Transferred to Torturer: ISAF Complicity?’ (2007), online: <http://www.amnesty.org/en/library/info/ASA11/011/2007> at 23 December 2007 (hereinafter Amnesty International, Afghanistan Detainees Transferred to Torturer). See also Amnesty International Canada and British Columbia Civil Liberties Association v Chief of Defence Staff for the Canadian Forces, Minister for National Defence and Attorney General of Canada [2007] FC 1147; and Amnesty International Canada and British Columbia Civil Liberties Association and Chief of Defence Staff for the Canadian Forces, Minister for National Defence and Attorney General of Canada [2008] FC 162 (hereinafter Amnesty International & Ors v Canadian Minister for Defence & Ors”).
[5] Ombudsman Institution in Kosovo, ‘Special Report No. 3 on The Conformity of Deprivations of Liberty under “Executive Orders” With Recognised International Standards’ (2001), online: <http://www.ombudspersonkosovo.org/?cid=2,3 & date=2001-00-00> at 21 February 2008); see particularly the Ombudsman’s recommendations, para 32. See also David Marshall and Shelley Inglis, ‘The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo’ (2003) 16 Harvard Human Rights Journal 95, 110-112, 113-119.
[6] There are of course other issues relating to accountability which are not discussed in this paper. These include the legal justification for holding detainees during situations of armed conflict; the law applicable to such detainees; responsibility of individuals, States and international organisations; and legal consequences for breaches of international and domestic law if individuals, States or international organisations breach their obligations. For a detailed discussion concerning the International Committee of the Red Cross (ICRC) approach to procedural principles and safeguards during internment and administrative detention in armed conflict and other situations of violence, see: Jelena Pejic, ‘Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence’ (2005) 87 (858) International Review of the Red Cross 375-391, 377.
[7] GA Res 43/173, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN GAOR, 43rd sess, 76th plen mtg, UN Doc A/Res/43/173 (1988), Use of Terms.
[8] This concept is taken from the common law principle of arrest. See for example, R v Inwood [1973] 1 WLR 647.
[9] On this point, see the discussion accompanying footnote 18.
[10] Arrest is ‘the act of apprehending a person for the alleged commission of an offence or by the action of an authority’: Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, above n 7, Use of Terms, para (a). Manfred Nowak argues that the word ‘arrest’ is interpreted in the ICCPR ‘to refer to the act of depriving personal liberty and generally covers the period to the point where the person is brought before the competent authority’: see Manfred Nowak, UN Convention on Civil and Political Rights: CCPR Commentary (2nd ed, 2005) 221.
In international humanitarian law, the term arrest has been interpreted to mean ‘the period that a person is in the hands of the police, preceding the trial stage… or prior to internment’: Commentary to article 75, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (hereinafter Additional Protocol I).
[11] Gerhard Hafner, ‘Can International Organisations be Controlled? Accountability and Responsibility’ (2003) 97 American Society of International Law Proceedings 236, 236. See also International Law Association, Committee on Accountability of International Organisations, Final Report (Berlin Conference, 2004) (hereinafter ILA Final Report) 168: Accountability in the context of this paper is a multifaceted phenomenon which refers to the duty to account for the exercise of power; and Marten Zwanenburg, Accountability of Peace Support Operations (2005) 63.
[12] Ibid.
[13] ILA Final Report, above n 11, 168.
[14] In a statement to regional groups of Member States of the United Nations, the UN Secretary-General argued for a ‘new accountability compact’ in which the UN Secretariat was accountable to its staff, Member States, and the global public: UN Secretary-General, Statement to Regional Groups, Stresses need for Mutual Accountability between United Nations, Member States, UN Doc SG/SM/11363 (2008).
[15] Zwanenburg, above n 11, 63.
[16] Al-Skeini & Ors v Secretary of State for Defence [2007] UKHL 26. See also article 12 of Geneva Convention relative to Treatment of Prisoners of War, signed 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950).
[17] International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UNGAOR, 56th sess, Supplement No 10, UN Doc A/56/10 (2001), art 2. See also arts 1 and 4.
[18] See for example, ICRC 2004 Report on Iraq, above n 3, para 3.
[19] This approach to defining accountability in the context of detention operations is based on the notion of accountability of international organisations discussed in the ILA Final Report, above n 11, 169.
[20] IHL refers to that area of law that concerns the conduct of armed conflict. It consists of treaty and customary law. The key IHL treaties that relate to the treatment of civilian detainees include: Hague Convention (IV) respecting the Laws and Customs of War on Land, Annex to the Convention, Regulations respecting the Laws and Customs of War on Land, opened for signature 18 October 1907, (1910) UKTS 9 (entered into force 26 January 1910); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (hereinafter Geneva Convention IV); and Additional Protocol I, above n 10.
[21] IHRL refers to that body of law that stipulates ‘obligations owed directly to individuals… and it provides, increasingly, for individuals to have access to tribunals and fora for the effective guarantee of those obligations’: Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), 95. Main treaties relevant to detention include: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (hereinafter ICCPR); Convention on the Rights of the Child, GA res 44/25, annex, UN GAOR Supp No 49, 167, UN Doc A/44/49 (1989) (entered into force 2 September 1990). There are also ‘soft norms’, which in relation to detention include: Body of Principles for the Protection of All Persons, above n 7; Basic Principles for the Treatment of Prisoners, GA res 45/111, UN GAOR, 45th sess, 68th plen mtg, UN Doc A/Res/45/11 (1990).
[22] The term ICL is used here to refer to that body of law that deals with serious crimes such as genocide, war crimes and crimes against humanity. The body of law on which ICL is based includes the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) and customary international law principles. The provisions relevant to detention that are located in the Rome Statute include: art 7(e) ‘Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’; art 7(f) ‘Torture’; art 8(2)(a)(ii) ‘Torture or inhuman treatment, including biological experiments’; and art 8(2)(c) ‘Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’.
[23] Geneva Convention IV, above n 21. See for example, art 3, 43 and 66-76.
[24] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46, opened for signature 10 December 1984 (entered into force 26 June 1987), UN Doc. A/Res/39/46 (1984) (hereinafter CAT), art 2.
[25] Amnesty International & Ors v Canadian Minister for Defence & Ors, above n 4, para 1.
[26] Christopher Greenwood, ‘International Law Framework for the Treatment of Persons Detained in Afghanistan by Canadian Forces’, Affidavit submitted for the Respondents in ibid, para 47.
[27] David Kretzman, ‘Human Rights: Their Place on the Battlefield’ (Speech delivered at the Law of Armed Conflict: Problems and Prospects Conference, Chatham House, London, 18-19 April 2005).
[28] Ibid.
[29] Ibid, 52.
[30] Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ICJ Reports [1996] 226, 240; Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports [2004] 136, 178; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005], paras 216-218, online: <http://www.icj-cij.org> at 18 October 2007,. The issue of the convergence of IHL and IHRL has been the subject of some robust criticism. See for example, Michael Kelly, ‘Critical Analysis of the International Court of Justice Ruling on Israel’s Security Barrier’ (2005) 29 Fordham International Law Journal 181, 187-207; Aeyal Gross, ‘Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?’ (2007) 18 European Journal of International Law 1, passim; and Gerald Draper, ‘Humanitarian Law and Human Rights’ (1979) Acta Juridica 193, passim, for a general discussion in relation to the distinction between the laws of war and human rights law.
[31] Behrami v France; and Saramati v France, Germany and Norway (Application Nos 71412/01 and 78166/01) (ECHR – Grand Chamber) [European Court Of Human Rights], para 149. See also Al-Skeini & Ors v Secretary of State for Defence [2007] UKHL 26, para 127.
[32] R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, para 39.
[33] For example, Body of Principles for the Protection of All Persons, above n 7.
[34] Ibid, preamble.
[35] Higgins, above n 21, 28.
[36] Geneva Convention IV, above n 20, art 131.
[37] See for example, Body of Principles for the Protection of All Persons, above n 7, principle 7.
[38] See for example, Principles on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, annexed to Resolution on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 55/89, UN GAOR, 55th sess, 81st plen mtg, UN Doc A/Res/55/89 (2000), para 1.
[39] Ibid, para 3.
[40] Report of the Secretary-General, Comprehensive Review of the Whole Question of Peace-Keeping Operations in all their Aspects: Model Status-of-Force Agreement for Peace-Keeping Operations, UN Doc A/45/594 (1990), para 6.
[41] Ibid, paras 24, 40 and 46.
[42] Ibid, para 47 and see also para 54 of the Agreement between the Government of Sudan and the United Nations Concerning the Status of the United Nations Mission in Sudan dated 28 December 2005, online: <http://www.unmis.org/English/documents/sofa.pdf> at 21 February 2008.
[43] Australian Government Department of Foreign Affairs and Trade, ‘Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga concerning the Operations and Status of the Police and Armed Forces and Other Personnel deployed to Solomon Islands to assist in the Restoration of Law and Order and Security’ [2003] ATS 17, arts 5 and 6 respectively (entered into force 24 September 2003), online: <http://www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/C398BB62482549C9CA256D710020A6D6> at 21 February 2008.
[44] Ibid, art 10.
[45] Ibid, art 13.
[46] For more detailed discussions of these Memoranda of Understanding see Amnesty International Report, Afghanistan Detainees Transferred to Torture, above n 4; and Adam Roberts, ‘Human Rights Obligations of External Military Forces’ in S Horvat (ed), The Rule of Law in Peace Operations. Seventeenth International Congress, The Hague – 16-21 May 2006: Recueil XVII of the International Society for Military Law and the Law of War (2006) 431-449.
[47] United Kingdom Parliament, ‘Memorandum of Understanding between the Government of the United Kingdom and Great Britain and Northern Ireland and the Government of the Islamic Republic of Afghanistan concerning Transfer by the United Kingdom Armed Forces to Afghan Authorities of Persons Detained in Afghanistan’, online: <http://www.publications.parliament.uk/pa/cm200607/cmselect/cmfaff/44/4412.htm> at 21 February 2008, para 3.
[48] Ibid, para 4.
[49] Ibid, para 5.
[50] See Bruce Oswald, ‘The Law on Military Occupation: Answering the Challenges of Detention During Contemporary Peace Operations?’ [2007] MelbJlIntLaw 17; (2007) 8(2) Melbourne Journal of International Law 311-326; and Bruce Oswald, ‘Detention on Military Operations: Some Military, Political and Legal Aspects’ in (2007) 46 The Military Law and the Law of War Review (in press) for a more detailed discussion concerning the development of a special legal regime.
[51] The Macquarie Dictionary (3rd ed, 1997).
[52] Philip Zimbardo, ‘When Good People Turn Bad’, All in the Mind, ABC Radio National (28 July 2007). See also University of Minnesota, CFC-A AO Detainee Operations Report of Inspection (2004), 20[h] (the ‘Jacoby report’), online: <http://www1.umn.edu/humanrts/
OathBetrayed/Jacoby%20Report.pdf> at 21 February 2008, where it was observed that ‘commanders at some locations had little or no involvement in detainee operations; others had security lapses or careless attitudes towards detainees’.
[53] Strasser, above n 3, 99.
[54] See for example, United Nations Human Rights website, General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art. 7): 10/03/92, 44th sess (1992), paras 10-11, online: <http://www.unhchr.
ch/tbs/doc.nsf/(Symbol)/6924291970754969c12563ed004c8ae5?Opendocument> at 21 February 2008.
[55] See, for example, the Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism - Martin Scheinin, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Mission to the United States of America, addendum, Human Rights Council, 6th sess, UN Doc A/HRC/6/17/Add.3 (2007), para 63.
[56] Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663C(XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, para 55.
[57] United Nations Rules for the Protection of Juveniles Deprived of their Liberty, annex to GA Res 45/113, UN GAOR, 45th sess, 68th plen mtg, UN Doc A/Res/45/113 (1990), para 72.
[58] ICRC 2004 Report on Iraq, above n 3, para 4.
[59] Ibid, para 7.
[60] Ibid, para 15.
[61] Ibid, para 24.
[62] See discussion of US, above n 16-19 and accompanying text.
[63] The Macquarie Dictionary, above n 51.
[64] Strasser, above n 3, 63.
[65] Body of Principles for the Protection of All Persons, above n 7, principle 33(1) and (2).
[66] See for example, ibid, principle 33(3).
[67] See for example, ibid, principle 33(4); Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, annexed to GA Res 3452(XXX), UN GAOR, 30th sess, 2433rd plen mtg, UN Doc A/Res/3452 (1975), arts 8 and 9; and CAT, above n 23, arts 12 and 13.
[68]Al-Skeini [2004] EWHC 2911 (Admin).
[69] Ibid, para 340.
[70] Ibid, para 322. See also the case of Juan Carlos Abella v Argentina heard by the Inter-American Commission of Human Rights, report no 55/97, case 11.137 (18 November 1997), particularly para 414 in which the Commission spells out the minimum steps that should be taken in investigating a death of a civilian at the hands of State agents. Again, while the comments in Abella refer to executions by State agents, the points made by the Commission are also relevant to investigating the abuse and mistreatment of detainees.
[71] Commission of Human Rights, Report of the Chairperson of the Working Group on Arbitrary Detention, Ms Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Mr Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Mr Asma Jahangir and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr Paul Hunt, Situation of Detainees at Guantanamo Bay, UN Doc E/CN.4/2006/120 (2006), online: <http://www.globalsecurity.org/security/library/report/ 2006/guantanamo-detainees-report_un_060216.htm> at February 2008, para 58.
[72] The Aitken Report, above n 3.
[73] See ibid, annex A.
[74] See for example, Body of Principles for the Protection of All Persons, above n 7, principle 35.
[75] See for example, CAT, above n 24, art 14.
[76] Annexed to GA Res 60/147, Resolution on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN GAOR, 60th sess, 64th plen mtg, UN Doc A/Res/60/147 (2006).
[77] Amnesty International, Afghanistan Detainees Transferred to Torture, above n 4, 18.
[78] Australian Defence Force Military Law Centre, Law and Military Operations in East Timor: Lessons Learnt for Legal Officers (Sept 1999-Feb 2000), Annex V, Order 21.
[79] Ibid, Order 22.
[80] For more details concerning the Detainee Management Unit see Bruce Oswald, ‘The INTERFET Detainee Management Unit in East Timor’ (2000) 3 Yearbook of International Humanitarian Law 347.
[81] Jacoby Report, above n 52, 20[h].
[82] Ibid, 17[t].
[83] United Nations Rules for the Protection of Juveniles Deprived of their Liberty, above n 57, rule 73.
[84] Centre for Law and Military Operations, Law and Military Operations in Kosovo: 1999-2001: Lessons Learned for Judge Advocates, 115, and Oswald, above n 80, 351-361.
[85] The Aitken Report, above n 3, para 37.
[86] UNMIK Regulation 2000/38 (30 June 2000), s 1.2. For a more detailed discussion concerning accountability and the role of an ombudsperson in the context of peace operations, see Zwanenburg, above n 3, ch 6.4.
[87] UNMIK Regulation 2000/38 ibid, s 2.1.
[88] Ibid, s 4.1.
[89] Ibid, s 2.2.
[90] ICRC 2004 Report on Iraq, above n 3. See also ICRC, Deprived of Freedom (2004) for a more detailed explanation of the ICRC’s role in relation to visiting detainees.
[91] See UN High Commissioner on Human Rights, Situation of human rights in East Timor: Note by the Secretary-General on the report on the joint mission to East Timor undertaken by the Special Rapporteur of the Commission on Human Rights on extrajudicial, summary or arbitrary executions, the Special Rapporteur of the Commission on the question of torture and the Special Rapporteur of the Commission on violence against women, its causes and consequences, in accordance with Commission resolution 1999/S-4/1 of 27 September 1999, UN Doc A/54/660, para 67, online: <http://www.unhchr.ch/huridocda/ huridoca.nsf/(Symbol)/A.54.660.En?OpenDocument> at 21 February 2008.
[92] See Afghanistan Independent Human Rights Commission website, online: <http://www.aihrc.org.af/legal_stutus.htm> at 3 February 2008. See also US Department of State, Afghanistan: Country Reports on Human Rights Practices 2006, concerning Afghanistan in which the role of the AIHRC concerning detainees is detailed in a more concrete fashion, online: <http://www.state.gov/g/drl/rls/hrrpt/2006/78868.htm> at 3 February 2008.
[93] Francis J Harvey and Peter J Schoomaker, ‘Detainee Details: Accountability and Progress’, National Review Online (2005), online: <http://www.nationalreview.com/ comment/harvey_schoomaker200509220821.asp> at 21 February 2008.
[94] Centre for Law and Military Operations, above n 84, 115.
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