Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Ben Emmerson. UN Photo/Jean-Marc Ferré
Released this afternoon, the so-called Feinstein report, after long-time US Senator Dianne Feinstein who chaired the Senate Select Committee on Intelligence that compiled the document, probes crimes of torture and enforced disappearance of terrorist suspects by the Bush-era CIA.
“It has taken four years since the report was finalised to reach this point,” said Ben Emmerson in a statement.
Now it is time to take action, he added. “The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes,” he said.
Identities of the perpetrators, and many other details, have been redacted in the published summary report but are known to the Select Committee and to those who provided the Committee with information on the programme.
“The fact that the policies revealed in this report were authorized at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability,” Mr. Emmerson explained.
International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.
The US is legally obliged, by international law, to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction.
“States are not free to maintain or permit impunity for these grave crimes,” Mr. Emmerson said.
It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.
However, the heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution.
“President Obama made it clear more than five years ago that the US Government recognizes the use of waterboarding as torture. There is therefore no excuse for shielding the perpetrators from justice any longer. The US Attorney General is under a legal duty to bring criminal charges against those responsible,” he said.
Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to. However, the primary responsibility for bringing them to justice rests with the US Department of Justice and the Attorney General.
Independent experts or special rapporteurs are appointed by the Geneva-based Council to examine and report back on a country situation or a specific human rights theme. The positions are honorary and the experts are not UN staff, nor are they paid for their work.