Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston

III. INTERNATIONAL OPERATIONS
A. Death penalty under the Military Commissions Act
38. Five men detained at the U.S. Naval Station at Guantánamo Bay, Cuba, have been charged with capital offences under the Military Commissions Act (MCA) and a number of other Guantanamo detainees face charges that may carry the death penalty. I welcome the President’s decision to seek a stay of all commission proceedings and to order a review of whether, and in what forum, individual detainees may be prosecuted. Such steps send a strong signal that the United States is restoring its commitment to the rule of law in its treatment, detention and prosecution of Guantanamo detainees. However, the President’s order appears to leave open the possibility that detainees may still be prosecuted – and subjected to the death penalty – under the MCA. Any such prosecution would be a violation of the United States’ obligations under international human rights and humanitarian law because the MCA does not comport with fundamental fair trial principles.
39. The United States has an obligation under international law to provide detainees with fair trials that afford all essential judicial guarantees. No State may derogate from this obligation, regardless of whether persons are to be tried for crimes allegedly committed during peace or armed conflict. But the text of the MCA and the experiences of those involved in the military commission process with whom I met indicate that commission proceedings utterly fail to meet basic due process standards. I highlight just a few of the more egregious evidentiary due process flaws.
40. There is now no doubt that detainees at Guantanamo were subjected to torture and coercion; senior Government officials have publicly admitted as much, and non-governmental organizations and counsel for individual detainees have provided credible accounts of cruelty and mistreatment. Contrary to international law, the MCA permits the taint of such coercion to pollute the U.S. justice system because it explicitly allows statements coerced by means such as cruel, inhuman, or degrading treatment to be admitted into evidence. Also deeply problematic are the MCA provisions on classified information, which permit the Government
to withhold from the defense the sources and methods by which evidence was acquired, and
42. Of the five reported deaths of detainees in U.S. custody at Guantánamo, four were classified by Government officials as suicides, and one was attributed to cancer. In the custodial environment, a state has a heightened duty to ensure and respect the right to life. Thus, there is a rebuttable presumption of state responsibility — whether through acts of commission or omission — for custodial deaths. The state must affirmatively show that it lacks responsibility to avoid this inference, and has an obligation to investigate and publicly report its findings and the evidence supporting them. But until forced to do so through Freedom of Information Act lawsuits, the Department of Defense (DOD) provided little public information about any of the five detainee deaths. Although DOD has now released redacted copies of internal investigation documents and autopsies, it should provide fully unredacted medical records, autopsy files and other investigation records to the families of all the deceased.

C. Lack of transparency regarding civilian casualties
1. Military
43. DOD officials confirmed to me that the military does not systematically compile statistics on civilian casualties in its operations in Afghanistan or Iraq. The purported reason is that “body counts” are not relevant to evaluating the effectiveness or legality of military operations. It is true that a simple “body count” may not on its own be useful. However, systematically tracking how different kinds of operations result in different levels of civilian casualties is critical if the United States is serious about minimizing casualties. Indeed, the Government’s own experience shows why this is so. Despite the general policy against tracking civilian casualties, in Iraq the military reportedly tracked checkpoint deaths when soldiers fire at civilians they believe, sometimes mistakenly, to be suicide bombers or other
attackers. I understand these monitoring efforts resulted in procedural changes that saved lives. This kind of effort to track, analyze, and learn from the consequences of military operations should be routine, not exceptional. The numbers and trends should be reported publicly to strengthen external accountability.
44. The challenges of compiling statistics on civilian casualties during military operations are undeniable. The lack of secure access to incident sites, especially those of aerial bombardments, can make it difficult to determine the number of persons killed, much less the proportion that were civilians. Thus, the DOD has noted that, while information on civilian casualties is included in significant activity (SIGACT) reports, this information is not necessarily accurate. But the solution is not to avoid compiling civilian casualty statistics altogether but to eschew simple counts in favor of releasing information that continually and systematically presents ranges and estimates with the necessary qualifications.
45. In relation to deaths in military custody, operational difficulties cannot be used to justify a failure to compile statistics. Making the numbers and causes of such deaths public is part of the United States’ obligation to exercise diligence, to prevent deaths of prisoners in its custody, and to investigate and prosecute any illegal conduct.
2. Private contractors
46. There have been numerous and credible accounts of private security and other contractors (PCs) engaging in a pattern of indiscriminate or otherwise questionable use of force against civilians. At least in Iraq, that use of force has resulted in a significant number of casualties, conservatively estimated to be in the hundreds, perhaps thousands. Yet the failures of reporting and transparency by PCs employed by various Government military and civilian agencies are even more dramatic than those for the military. For example, in Iraq, the DOD established Reconstruction Operating Councils (ROCs), administered by a private security contractor, to provide coordination between the military and security contractors. While in theory DOD contractors report casualties and use of force in serious incident reports (SIRs) to the ROCs, doing so has not been compulsory for all contractors. The most comprehensive study to date found that few firms ever report shooting incidents, that such incidents are often misreported, and that SIRs that are filed are almost uniformly cursory and uninformative.
3. Civilian intelligence agencies
47. There are credible reports of at least five custodial deaths caused by torture or other coercion in which the Central Intelligence Agency (CIA) has been implicated. Although the role of the CIA in these wrongful deaths has reportedly been investigated (and in one instance, a CIA contractor prosecuted), no investigation has ever been released and alleged CIA involvement has never been publicly confirmed or denied. The CIA Inspector General told me that the number of cases involving possibly unlawful killings referred by the CIA to the DOJ is classified.
D. Transparency and accountability for unlawful killings and custodial deaths
48. As discussed above, the Government’s failure to track civilian casualties in Iraq and Afghanistan means a lost opportunity to analyze causes and the lost possibility of reducing those deaths. Similarly, a failure to undertake transparent and effective investigations into, and meaningful prosecution of, wrongful deaths means the Government cannot fulfill its obligation to ensure accountability for violations of the right to life.
1. Military justice system failures
a. Lack of transparency
49. During my visit to Afghanistan, I saw first hand how the opacity of the military justice system reduces confidence in the Government’s commitment to public accountability for illegal conduct. It is remarkably difficult for the U.S. public, victims’ families, or even commanders to obtain up-to-date information on the status of cases, the schedule of upcoming hearings, or even judgments and pleadings. This lack of transparency is, in part, a sideeffect of the decentralized character of the system, in which commanders around the world are given the authority to conduct preliminary investigations and act as “convening authorities” to initiate courts-martial.
50. This problem can be solved relatively quickly and easily. Each service, for example, is required by law to maintain a Court-Martial Management Information System for records of general and special courts-martial. A centralized system for reporting and providing public information about all courts-martial and non-judicial proceedings relating to civilian casualties could be added to the existing system, and this would markedly improve accountability and reduce the sense among Afghan and Iraqi civilians, and others around the world, that U.S. forces operate with impunity.
b. Lack of effective investigation and prosecution
51. While the U.S. military justice system has achieved a number of convictions for unlawful killings in Afghanistan and Iraq, numerous other cases have either been
inadequately investigated or senior officers have used administrative (non-judicial) proceedings instead of criminal prosecutions. In cases in which criminal convictions were obtained, some sentences appear too light for the crime committed, and senior officers have not been held to account for the wrongful conduct of their subordinates.
52. The legal obligation to effectively punish violations is as vital to the rule of law in war as in peace. It is thus alarming when States either fail to investigate or permit lenient punishment of crimes committed against civilians and combatants. The legal duty to investigate and punish violations of the right to life is not a formality. Effective investigation and prosecution vindicates the rights of the victims and prevents impunity for the perpetrators. Yet, based on the military’s own documents, one study of almost 100 detainee deaths in U.S. custody between August 2002 and February 2006 found that investigations were fundamentally flawed, often violated the military’s own regulations for investigations, and resulted in impunity and a lack of transparency into the policies and practices that may have
contributed to the deaths.
53. States must punish individuals responsible for violations of law in a manner commensurate with the gravity of their crimes. I raised this issue with the Government in relation to the January 2006 sentencing of Chief Warrant Officer Lewis E. Welshofer Jr. to two months confinement to his base, a fine of $6,000, and a letter of reprimand after being found guilty of negligent homicide and negligent dereliction of duty for the death of Major General Abed Hamed Mowhoush, an Iraqi general who had turned himself in to military authorities. I have received no response.
54. I also received no response to my request for data on sentences imposed for particular offences. But military records released in Freedom of Information Act litigation make clear that the Welshofer sentence is not an anomaly. Data compiled by journalists also reinforce the perception that sentences have not consistently been proportionate to the offence committed. According to a review of cases in Iraq between June 2003 and February 2006 conducted by the Washington Post, 39 service members were formally accused in connection with the deaths of 20 Iraqis, but only 24 were charged with murder, negligent homicide or manslaughter, of whom only 12 ultimately served prison time (with sentences ranging from 45 days to 25 years), 3 were convicted with no confinement, 1 was acquitted, charges against two others were dropped, and 6 received administrative, non-judicial punishments.
55. It is noteworthy that “command responsibility,” a basis for criminal liability recognized since the trials after World War II, is absent both from the Uniform Code of Military Justice (UCMJ) and the War Crimes Act. It appears that no U.S. officer above the rank of major has ever been prosecuted for the wrongful actions of the personnel under his or her command. Instead, in some instances, commanders have exercised their discretion to lessen the punishment of subordinates for wrongful conduct that resulted in a custodial death. Such failures of accountability undermine the importance of hierarchy and discipline within the military as well as the essential role of the commander in preventing and punishing war crimes. The criminal liability of commanders for failure to prevent or punish the crimes committed by subordinates should be codified in the UCMJ and the War Crimes Act.
2. Civilian justice system failures
56. For far too long, there has been a zone of de facto impunity for killings by private contractors (PCs) and civilian intelligence agents operating in Iraq, Afghanistan, and elsewhere. There is some debate whether federal court jurisdiction extends to PCs of Government agencies other than DOD, a debate that Congress should resolve expeditiously by clarifying that it does. But the principal accountability problem today is not the inadequacy of the applicable legal framework. Rather, U.S. prosecutors have failed to use the laws on the books to investigate and prosecute PCs and civilian agents for wrongful deaths, including, in some cases, deaths credibly alleged to have resulted from torture and abuse. Prosecutors have also failed, even years after alleged wrongful deaths, to disclose the status of their investigations or the bases for decisions not to prosecute. One well-informed source succinctly described the situation: “The DOJ has been AWOL in response to these incidents.” This must change.
57. The Department of Justice (DOJ) is responsible for prosecuting PCs and civilian Government employees, as well as former military personnel who commit war crimes. DOJ has failed miserably. Its efforts are coordinated by two bodies. The first is a task force based at the U.S. Attorney’s Office for the Eastern District of Virginia, which handles detainee abuse cases. This task force has admitted that 24 cases of alleged detainee abuse were referred to it and that it has declined to prosecute 22 of these cases. It is unclear why more cases have not been referred (or if they have, how many more), or how many of the 24 referred cases involved the detainee deaths credibly alleged to have occurred at the hands of PCs or the CIA.
58. The second entity, the Domestic Security Section (DSS) of DOJ’s Criminal Division, coordinates the prosecution of other cases involving PCs, such as unlawful shootings committed while protecting convoys. Its track record has been somewhat better, although too often it appears investigations and prosecutions follow only the most notorious public cases, such as the shootings in Nissor Square.
59. DSS representatives acknowledged the lack of convictions to me, but refused to provide even ballpark statistics on the allegations received or the status of investigations. They emphasized that conducting investigations in a war zone is extremely difficult and that they ultimately rely on the military either to conduct the investigation or to provide the FBI with logistical and security support. While there are significant challenges to conducting investigations in the context of armed conflict, DSS representatives’ responses suggested serious thought had not been given to how such investigations can be conducted. Investigations into PCs’s conduct can be conducted successfully, and one interlocutor who has done so suggested that these cases are actually relatively easy to investigate because they
tend to take place in daylight in front of numerous witnesses who can go to safe locations to be interviewed.
60. The lamentable bottom line is that DOJ has brought a scant few cases against PCs for civilian casualties, achieved a conviction only in one case involving a CIA contractor, and brought no cases against CIA employees. Government officials with whom I met acknowledged this lack of accountability, and it now seems clear that this vacuum is neither legally nor ethically defensible. Indeed, many PCs themselves accept the need for legal regulation and accountability. Unfortunately, accountability for CIA officials appears more remote because of a lack of political will.
3. Ensuring Transparency and Accountability
61. The key to overcoming this record of failure, both in the civilian and military justice systems, is prosecutorial and political will to enforce the rule of law. However, the nearly universal sense I was given during my visit by those in Government is that systematic accounting of, and prosecutions for, wrongful deaths are unlikely. In short, war crimes prosecutions in particular are “politically radioactive.” That sense continues to be reflected by Government statements which indicate more of a commitment to “moving forward” than to ensuring transparency and accountability for policies, practices and conduct that led to illegal killings by Government personnel and their agents. But a refusal to look back inevitably means moving forward in blindness. Political expediency is never a permissible
justification for a State’s failure to investigate and prosecute alleged crimes.
62. Although there is no substitute for prosecution of violations of the right to life, in the short-term there are a number of steps the Government can take towards transparency and accountability. One such step is the creation of a national “commission of inquiry” tasked with carrying out an independent, systematic and sustained investigation of policies and practices that lead to deaths and other abuses. Over the 27 years of their mandate, successive Special Rapporteurs for extrajudicial execution have focused on the procedures and results that make such commissions effective and give them credibility. I described in a recent report
to the Council the situations to which a commission is best suited, and the principles and standards necessary for it to be successful.
63. A commission is an especially attractive option in this context because it is likely that extrajudicial killings resulted from a set of policy failures on the part of a variety of Government actors and agents. In such complex circumstances, transparency may best be achieved through a commission rather than through prosecution alone. The commission could propose structural or long-term reforms that would better ensure the right to life and other fundamental human rights. Another option is the appointment of a special prosecutor who would be independent of the kinds of institutional and political pressures that could – and have – hindered effective investigation and prosecution by DOJ. Some have made proposals about the particular form a commission could take, and the merits of a special or independent
prosecutor. I do not endorse any specific proposal, although I do note that a commission and an independent prosecutor are not mutually exclusive.
64. Regardless of the specific form of the commission, it should meet certain fundamental requirements, including that it must: be independent, impartial and competent; have the powers necessary to obtain all the information it requires; have sufficient resources and personnel; and, report all of its findings and recommendations publicly and disseminate them widely. When the report is completed, the Government should reply publicly and indicate what it intends to do in response. Any commission designed to provide the appearance of accountability rather than to establish the truth, or one that undermines the possibility of eventual prosecution, would fall short of the same international standards to which the United States often seeks to hold other countries.
65. The most credible response to the military justice system’s investigative failures and sentencing distortions would be the creation of a Director of Military Prosecutions (DMP) position. Such positions have recently been instituted in Australia, Canada, Ireland, New Zealand and the United Kingdom to ensure greater separation between the chain of command and the prosecution function. Rather than permitting commanding officers to decide whether to prosecute their own soldiers – a decision in which superior officers have a direct and potentially conflicting interest – a DMP makes independent decisions.
66. Regarding investigation and prosecution of PCs, a significant problem is that cases are handled by U.S. Attorneys offices around the country. Prosecutors do not have an incentive to prioritize such difficult and expensive cases, especially when expected to conduct investigations within their ordinary operating budget. An office should be established within DOJ dedicated solely to investigating and prosecuting cases involving PCs, civilian Government employees, and former military personnel, and to provide appropriate funding.