Outsourcing injustice: Guantanamo on the Euphrates

The UN Office of the High Commissioner for Human Rights (OHCHR) has completed a study of prosecutions of alleged ISIL (ISIS) members in Iraq. Thousands of men, women and children have been processed through the Iraqi courts in the past two years and there may be thousands to come.

Published last month, the OHCHR report has a convoluted title promising a critique of the “Administration of Justice in Iraq”. While there is some useful information in the report, it is most notable for what it does not say.

Nowhere is there any reference to the role that Europe or the United States have played in the degradation of every human rights principle the world has developed in the last 75 years. Indeed, the Iraqi story ultimately reflects how the West is now outsourcing the torture and abuse that the US formerly inflicted in Dark Prisons from Kabul to Guantanamo Bay.

In Afghanistan, after the US-led invasion of October 2001, we Americans systematically abused prisoners ourselves. We subjected thousands of Muslim men to torture in Bagram Air Force Base and other secretive prisons. Something similar took place after the invasion of Iraq, making names like Abu Ghraib, Camp Cropper and Camp Bucca synonyms for the medieval mistreatment of detainees.

This dark history diminished America’s reputation around the world. However, it did not deter some in the government from continuing their war on human rights – partly inspired by revenge and partly by the extraordinary belief that torture would somehow produce valuable intelligence in the so-called “war on terror”.

Today, rather than get American hands dirty, the US thinks it better to outsource the mistreatment to other regimes across the globe.

by Clive Stafford Smith

Today, rather than get American hands dirty, the US thinks it better to outsource the mistreatment to other regimes across the globe.

The current story begins in what was largely Syrian territory taken over by ISIL where, today, more than 70,000 prisoners languish in prisons and camps run by the Kurds and their allies who comprise the semi-autonomous area of northeast Syria, before they are sent to Iraq for trial.

An estimated 56,000 of these prisoners are from Syria or Iraq, while 14,000 (deemed “foreigners”) hail from more than 40 countries around the world. (Given that many of these prisoners seem destined for the Iraqi courts, it is surprising that Syria is not mentioned in the 30 pages of the OHCHR report.)

The American involvement in prisoner mistreatment is, sadly, not news. The big change in Syria and Iraq involves the Europeans, who issued pious criticism of some US actions after 9/11.

In 2020, however, fuelled by their own populist Islamophobia, Western European countries are now tragically joining this flight from human rights.

So what does the OHCHR report actually tell us?

The organisation studied a fairly small group among the thousands of cases – just 619, of whom 23 were women and 44 were children at the time of their alleged offences. This is not a dissimilar sample to the 780 detainees who ended up in Guantanamo Bay, themselves drawn from the thousands the US processed in the wake of 9/11.

The OHCHR tells us that 42 percent of prisoners brought to an Iraqi courtroom claim they have been tortured (“men, women and children”, according to the authors). This will prove to be an underestimate, since a victim of torture has to be brave to make such a claim in front of his abusers. In Guantanamo, there was not a single prisoner who did not face abuse.

The OHCHR condemns the widespread use of the death penalty by the Iraqi courts. A death sentence has apparently been imposed in at least one-third of cases, often on the charge of “membership of ISIS” alone, without even an allegation of a crime, let alone proof. One reason I got involved in defending the Guantanamo detainees, after years of work on capital punishment cases in America’s Deep South, was that the US military commission system, created in April 2003, made the death penalty available in all the cases in Guantanamo – even for something as innocuous as “aiding the enemy”.

The OHCHR reports that Iraqi courts rely on secret, anonymous witnesses whose evidence cannot be tested and involuntary statements extracted through torture. Confessions were presented in 436 cases, and in 366 of them (84 percent) the accused claimed it was involuntary. The Iraqi courts nonetheless rely on this as evidence.

Unfortunately, they are merely replicating what happened at Guantanamo where detainees were not allowed to know the secret evidence against them and where Ahmed Rabbani – one of my clients who is still held there – faces detention without trial based on statements coerced out of him after 540 days of brutal torture in the Dark Prison in Kabul.

This week, an Iraqi judge told British newspaper the Independent that he likes to follow the media to learn about the people he will be sentencing to death.

by Clive Stafford Smith

This week, an Iraqi judge told British newspaper the Independent that he likes to follow the media to learn about the people he will be sentencing to death. It is outrageous that nonsense in a tabloid paper could be relied on as the basis for a hanging, yet we see similar materials being used as “evidence” in every case we have seen in Guantanamo Bay. Much of this I cannot describe because, for equally incomprehensible reasons, it is deemed “classified”. But in one instance, where the material was ultimately released into the public domain, the detainee was held on the basis of newspaper articles and informants of ludicrous unreliability – one of whom had informed on many detainees in the hope that the US would provide him with “penis enlargement” surgery.

The OHCHR decries how the Iraqis have only allowed court-appointed counsel for three-quarters of prisoners – and even then the lawyer normally meets the client only at the start of the hearing and cannot hope to present a meaningful case. This is, of course, ludicrous. In the many death penalty cases I have defended in the US, we have averaged three years, not three minutes, of preparation prior to trial and, even then, we make plenty of mistakes.

Indeed, the report reflects that one in five of the children tried on terrorism charges in Iraq did not even have lawyers. This is reprehensible, yet the US fought tooth and nail to prevent lawyers from getting into Guantanamo at all. I got in there only after two-and-a-half years of litigation but I, along with everyone else, had to promise to do all the work for nothing and pay all my own costs. None of my 88 clients has ever been allowed a trial. The $6bn the US has spent so far on the Guantanamo prison has resulted in one conviction among 780 prisoners; that was what must surely be the most expensive guilty plea in history.

Thus, without mentioning it, the OHCHR unwittingly details how many of America’s recent bad practices have spread like a coronavirus around the world – now to Iraq.

At least the detainees held in Cuba were all men who might plausibly have been involved in violence against the US and its allies – although 745 of the 780 (over 95 percent) have since been cleared or released. But with what is happening in “Guantanamo on the Euphrates” – the camps in northeast Syria – the overwhelming majority of the “foreign terrorists” (some 9,000 out of 14,000) are children and most of the rest are women. Western European policy is to either let them die in the rudimentary camps or pass them over to the Iraqis for trial.

The notion that sacrificing our liberties will make us safer is simply obscene. And yet sacrifice them we do.

by Clive Stafford Smith

The notion that sacrificing our liberties will make us safer is simply obscene. And yet sacrifice them we do. Pandering to the fear of terrorism, the British “secretly” abandoned the long-standing requirement, imposed years ago by the European Court of Human Rights that they should demand assurances that the death penalty will not be imposed in any case, even if it were a serial killer like Ted Bundy.

The New York Times reports that at least seven French men, transferred to Iraq from Syria, were sentenced to die by hanging for alleged affiliation with ISIL without even a suggestion, let alone evidence, that any of them had committed any act of violence. The Times says that France “turned its citizens” over for death penalty trials that last only a few minutes, in apparent contravention of rules set by the European Court of Human Rights.

It is hardly novel to suggest that Iraq has a dreadful legal system. But it is big news – a tragedy in truth – that Western European governments are jettisoning the bedrock principles that provide the foundation for their societies.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.