Indictments and Investigations on the War on Terrorism - Essay Example

What are the legal consequences of such warrants, indictments, and investigations on the war on terrorism and related international conventions and practices The sp-called "war on terrorism" has raised new questions as to the extent to which countries must adhere to their treaty agreements, convention signings and general principles of lawful practice. A number of countries, including the United States, have claimed the right to essentially rewrite their treaty obligations and even their own laws under, in the case of the US, the guise of "executive authority" in time of war. As the case in Italy illustrates, limits both should be and are being placed on some of the more extreme actions being taken within the "War on Terror". A number of legal points are raised by this case. First, the position of the United States in its actions vis-a-vis the suspected terrorist. Second, the role of the Italian government in the transfer of the prisoners. Third, the role of the Italian prosecutors in indicting members of its own government and fourth, the degree to which the United States should acquiesce to the Italian prosecutors and turn over the CIA agents for trial. Dealing with the first section, it should initially be stated that the United States does have a duty to obey international law and treaties that it is a signatory to (Shaw, 2003). The fact that the United States is seen as the world's only super-power with supposedly overwhelming power (although the current Iraq debacle would put this in a problematic light) does not imply that it should ignore international laws because it can. Indeed, the very idea of "international law" was created in order to stop countries from doing what they wanted to when they had the power to do so - the prime examples being Germany and Japan during WWII. The more powerful the country, the more it should be seen to adhere to both the letter and the spirit of the law. It is with this background that the role of the United States should be seen. The United States is a signatory to the United Nations Universal Declaration of Human Rights, signed in 1948. This may be seen as the overarching "treaty" (even though it is not officially one) under which international agreements under human rights have been signed and enforced since this time. The Declaration is quite specific on a number of matters that directly relate to the case of the radical Muslim cleric, most notably article 3, which states that "everyone has the right to life, liberty and security of person", Article 5, which states that "no-one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment" and Article 6, which states that "everyone has the right to recognition everywhere as a person before the law" (UN, 1948). It seems quite clear that the kidnapping of a prisoner and his transport to a country where the CIA knows that he is going to be tortured by the authorities, and indeed, the fact that he is specifically being transferred to that country in order to be tortured is a contravention of the Declaration that was signed in 1948. The United States has, more specifically, signed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (UNICAT), which came into effect in 1987. The definition of torture according to the Convention is "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from or a third person information or a confession" (United Nations, 1987). The question which arises in cases such as the one here is whether the movement of a person from one jurisdiction to another, commonly known as "rendition" within the law (Higgins, 2000). Rendition has normally occurred, at least until recently, through legal channels such as extradition, which occurs between countries or from state to state within a single country that has a federal system. The problem that appears with so-called "extraordinary rendition", which occurs without any visible legal process is that it appears to be a simple euphemism to attempt to cover an act of kidnapping a person in one country and sending them to another in order for them to be tortured. The act of "extraordinary rendition" that occurred here was essentially a matter of what has been called "torture by proxy" (Grey, 2006). But the fact that Italian agents had a part to play in the rendition of Hassan Mustafa Osama Nasr (aka Abu Omar) bring about questions of jurisdiction. The jurisdiction for Milan (where the man was taken from) is clearly Italian, so if the American CIA agents were working with what they thought to be legitimate agents of the Italian government then they could be held innocent of any wrongdoing (Delaney, 2006). This leads to the second and third sections that were mentioned earlier: the role of the Italian agents and the role of the prosecutors in indicting both them and their CIA counterparts. One of the most interesting elements of this case is the fact that Italian prosecutors were already investigating Nasr, and had nearly enough evidence to arrest him for terrorist-linked offenses when he disappeared in 2003. When they discovered that the CIA and/or Italian secret service had kidnapped him they were angry for two reasons: first because the kidnapping was illegal and second, because it had interrupted a very important criminal case. The prosecutors have argued that much more information might have been gained from Nasr through the legal channels that were being used than through the illegal torture that was eventually used. According to many different international treaties that the United States is a signatory to, its citizens can be arrested, prosecuted, convicted and even imprisoned under the laws of another country if their acts occurred in that country. The arrest warrants against the CIA operatives are legitimate and should, in order to preserve at least the semblance of adherence to the law within the current US administration. Possible charges of "kidnapping" and "abduction" seem quite simple to prove, if there was indeed no legal framework within which the rendition was occurring. The fascinating factor within this case is that Italy is an ally of the United States, so the actions of the United States citizens (the CIA) could not be seen as part of the passage of war as they were in fact acting within a friendly country. They are not being charged by an enemy but rather by a friend. The problem with so-called "extra-judicial" actions taken by governments or individuals is that they are open to abuse and outright mistakes more than judicial proceedings. Take the case of Khalid el-Masri who was "erroneously rendered" because of a case of mistaken identity. He seems to have been mistaken for a man with a similar name - Khalid al-Masri, a German citizen who was kidnapped, taken to Afghanistan, allegedly tortured and then released without charge several months later. Had actual judicial proceedings been concerned with the case, then the mistaken identity would have soon been discovered and el-Masri released without harm, either to himself or to the image of the United States. When governments take it on themselves to act in a manner beyond the law, or suggest that they can essentially invent the law from moment to moment according to what is perceived as expedient, then problems such as this are bound to occur. The whole subject of rendering individuals is currently mired within a fog of confusion, as Ali Khan suggests: "More than anything else, the law (or lawlessness) around renditions is most intriguing. Rendered men cannot be lawfully extradited because they have committed no crime in the Muslim state to which they are rendered. Sometimes, the friendly government has no clue about the identity or activities of the person before he is rendered. Sometimes, the rendered man is not even a national of the receiving state. Hence the contrast between extradition and rendition is vivid. Extradition is an open procedure under which a fugitive is lawfully sent to a requesting state where he has committed a serious crime. Rendition is a covert operation under which even an innocent person may be forcibly transferred to a state where he has committed no crime. It is like a bully dispatching a helpless prey to another bully in another town." (Khan, 2005) The whole subject of extraordinary rendering in general, and of this particular case in particular, seems to boil down to the use of euphemism to attempt to hide what is essentially a quite simple process: the kidnapping, abduction and subsequent torture of individuals whom legal channels would not provide enough evidence to prosecute. The law is, in one sense at least, a deliberate balance and opposite to the tendency of all governments to cover their more dark actions within pleasant-sounding words. The law states, as explicitly as possible, what is and what is not allowable under certain situations. Torture is illegal in the United States, as is torture committed by US citizens while outside of the United States. These are simple facts of law which should lead to the inevitable conclusion that the CIA operatives involved in the rendition should be turned over to Italian authorities for prosecution. A simple case of reversing roles will show where allowing the US to ignore the law in this case may lead. Donald Rumsfeld has now left office. A German advocacy group, the Center for Constitutional Rights has filed a 220 page complaint against Rumsfeld with German prosecutors (Malaysia, 2006). There is a distinct possibility that they may file charges against Rumsfeld. Under the theory of extraordinary rendition it would be quite legal for a group to kidnap Rumsfeld, take him to Germany in order to prosecute him or, if needed, "render" him to a country - Cuba or North Korea might be a good example, where he can be interrogated without recourse to the laws of the European Union against "alternative interrogation techniques". What would the reaction of the United States be to such a situation __________________________________________ Works Cited Delaney, Sarah. "Italian Spy Chief Out: Investigated in Abduction". The Washington Post, Nov 21, 2006. Grey, Stephen. Ghost Plane: The True Story of the CIA Torture Program. St Martin's Press, New York: 2006. Higgins, Rosalynn. Problems and Process: International Law. Clarendon Press, New York: 2000. Khan, Ali L., "Partners in Crime: Friendly Renditions to Muslim Torture Chambers" . Counterpunch, June 2005 Malaysia Sun, "Rumsfeld prosecution on criminal charges unlikely, says US". November 14, 2006. Shaw, Malcolm. International Law. Cambridge UP, Cambridge: 2003. United Nations, The Universal Declaration of Human Rights, Resolution 217 A (III), 10the December, 1948. United Nations, United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, 1987. Read More