The continued detention of several hundred people at the US camp in Guantanamo Bay, Cuba, is “one of America’s worst violations” of human rights, according to Aryeh Neier, former executive director of Human Rights Watch (HRW).

Delivering a lecture on “International norms versus local realities: why international law matters,” at the Gulf Research Center in Dubai on December 4, Neier – currently the President of the Open Society Institute in New York – said Washington decided to use a base owned outside its territory to avoid American legal objections. “The detention camp is completely illegal,” he said, adding that human rights groups nevertheless took the case to the court and eventually the US Supreme Court agreed that it could consider matters related to Guantanamo.

In his opinion based on over four decades of rights activism involving developments all over the world, the Guantanamo camp issue violates three sets of laws – American Constitutional Law, International Humanitarian Law and International Human Rights Law. The United States is still wary of what international organizations can do on issues such as the invasion of Iraq and Guantanamo detentions under the principle of “universal jurisdiction”, which allows people to be tried in courts outside their own countries. Former Chilean dictator General Augusto Pinochet was arrested in Britain following Spain’s indictment and efforts to try him on its soil. However, that did not happen “only because of his poor health”.

Some European governments are ready to use the same principle against the United States, and which the current American leaders are well aware of, Neier – one of the three founding members of HRW, said. “Though George W. Bush, Vladimir Putin and Donald Rumsfeld believe that they are not accountable for their actions that violate international law (in Iraq, Guantanamo and Chechnya), it is possible that they will not travel too much after their terms in office because of the fear of facing what Pinochet or former Yugoslavian leader Slobodan Milosevic or Iraqi leader Saddam Hussein faced. In fact, human rights groups have already been filed charges against Rumsfeld in a German court in November.”

Following are some of Neier’s other observations.

Abuses in Iraq

During Saddam’s reign, the US and the international community should have tried harder to stop the Anfal genocide in 1988. The episode became HRW’s largest research project after having getting access in 1991 to 749 boxes of seized records, which had details of abuse of prisoners documented by the Iraqi secret police itself. The HRW tried to bring a genocide case against Saddam through the international Court of Justice, but such a case at that time required a government as plaintiff, which no one was willing to for fear of antagonizing the Iraqi leader.

While international intervention during 1988 would have been completely legitimate, there is no doubt that the reasons for the 2003 US-led invasion of Iraq are invalid. In the current Iraqi case, Neier said he had opposed the invasion and has been a strong critique of the US conduct in Iraq thereafter. HRW is monitoring abuses by the United States and coalition forces. Though it has not had a total impact, harassment and torture have stopped to a limited extent because of the monitoring process and some individuals have been freed from detention as well. There are court cases dealing with American officials, which are yet to be decided; over time, it is likely that some of them will be judicially sanctioned.

US circumvention effort

The jurisdiction of the International Criminal Court (ICC) is over countries that have ratified the treaty and involves crimes that have been committed in those countries. The jurisdiction of the ICC is not retroactive and goes back only to the point when the country ratified the treaty.

The US has strenuously opposed the ICC and has worked with several governments around the world, that are dependent on it, to sign agreements that Americans will not be subject to the jurisdiction of the ICC if they have ratified the treaty.

Iraq is not a party to the ICC and so American crimes committed in Iraq are beyond the court’s jurisdiction. Afghanistan ratified the treaty, but Washington signed “Article 98 Agreement” with the Afghan government exempting Americans from the jurisdiction of the ICC with respect to crimes committed in the war-torn country.

But many countries have refused to sign such an agreement with the United States. Hence, some American leaders worry about the possible actions of the ICC and the principle of universal jurisdiction.
Rights in the region

The Arab Organization for Human Rights, with its headquarters in Cairo and Paris, has played a significant role, but it has not been operating in all the countries and not uniformly effective either. One of the problems in Iraq during Saddam’s tenure was the absence of local human rights groups. Those monitoring and highlighting violations in Iraq were exile groups, which fell into the trap of questionable credibility.

The notion of human rights and aims to address them are new in the Gulf region. Moreover, efforts of international organizations are successful in the regional context only if local groups and people act and cooperate; on the other hand, experienced international groups should protect local groups because they risk being penalized by their governments

For human rights to become a part and parcel of the evolving process in the Gulf, awareness of the subject is a good way to start because it won’t threaten the governments; once the values are made well known among the people, prominent people can come on board to lend credibility to the activities of the organizations, which will also make the developments less confrontationist.

About Aryeh Neier

Prior to joining the Open Society Institute in 1993, Neier served for 12 years as Executive Director of Human Rights Watch. Before that, he spent 15 years at the American Civil Liberties Union, including eight years as national Executive Director. Neier has served as an Adjunct Professor of Law at New York University for more than a dozen years. He is a frequent contributor to The Nation and The New York Review of Books, and has published in periodicals such as The New York Times Magazine, The New York Times Book Review, and Foreign Policy. Neier has contributed more than a hundred op-ed articles in newspapers including The New York Times, The Washington Post, The Boston Globe, and The International Herald Tribune. Author of six books, he has also contributed chapters to 20 others. He is the recipient of six honorary doctorates and the American Bar Association’s Gavel Award.