UN special rapporteur on military crimes

Last week the Human Rights Council of the United Nations published a report by Philip Alston, its special rapporteur on extrajudicial, summary or arbitrary executions. Alston’s subject was a mission he undertook to the United States earlier this year.

As with the Amnesty International report mentioned below, the report makes harrowing reading. Leaving aside Alston’s comments on the judicial system within the United States and at Guantanamo Bay, he takes the military and judicial authorities in America to task for their failures to protect human rights in Afghanistan or Iraq.

“It is noteworthy,” says Alston, “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.”

Alston says there has been a “zone of de facto impunity” for private contractors and civilian intelligence agents operating in Iraq and Afghanistan, not through a lack of law, but through an unwillingness of prosecutors to prosecute. He adds: “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.” “

He gives as an example the August 2002 shooting to death of Afghan national Mohammad Sayari. The army investigation into Sayari’s death recommended charges including conspiracy and murder against four members of a Special Forces unit. In fact, the commanding officer dropped all charges and issued only a written reprimand of a captain who had ordered his subordinates to destroy evidence.

The best way to end these abuses, says Alston, is to create a commission of inquiry tasked with carrying out independent, systematic and sustained investigation of policies and practices that lead to deaths and other abuses. He also recommends the appointment of a ‘Director of Military Prosecutions’ who would be independent of the chain of command.

The final section of Alston’s report deals with the legal basis for ‘targeted killings’ – in particular the use of missiles fired from drones that often kill innocent civilians.

Alston says he has asked on several occasions for details of the legal basis for these attacks. He says the US government has been evasive in its answer, telling him the answer lies outside his remit. The best he can ascertain is the fact that in September 2001 President Bush signed a ‘presidential finding’ pursuant to the authority of which the CIA developed the concept of “high-value targets” for whom “kill, capture or detain” orders could be issued in consultation with lawyers in DOJ, CIA, and the administration.

However, that leaves many questions, not least on whether or not it is legal to carry out such attacks in a country such as Pakistan with which the USA is not at war.

Alston’s report makes depressing reading. It shows that for all the talk about freedom and democracy, the US pays little heed to these values in the way it deals with the crimes and errors of an admitted tiny minority.