and confidentiality is that, when a person discloses any sensitive information, it becomes responsible to maintain this intelligence secret or confidential from the public or the media. In other words, he/she is accountable in their judicial system in administrative and criminal grounds.
In conclusion, proper accountability is the only way to prevent abuses in intelligence gathering services, and it is a responsibility of both sender and receiver countries of the information, independent of his national legal framework.
10. IHL: THE PROBLEM OR THE SOLUTION?
With the power of detention (previously explained) comes the right to interrogate the suspect, which is also part of any investigation. However, in some cases persons suspected with terrorist activities are held outside the rule of law, in secret or incommunicado detention and without access to a lawyer, their families or judicial remedies like habeas corpus, among other concerns already exposed.
It is also said about different methods of interrogations that may be interpreted as torture, among others that are clearly illegal in international human rights law.
They are both performed with the purpose of gathering intelligence in sensitive situations, when any connection between the detained and the outside may spoil the investigation and bring a threat to the country, when the suspect really is a terrorist and may order a bomb attack or an assassination.
All this discussion takes place because of the use of the Human Rights legal framework, which is not the most adequate tool when a Government deals with enemies in a Non-International, Asymmetrical, Low Intensity Armed Conflict, where the parties are the Government and the terrorist group.
In this situation the correct legal framework is the International Humanitarian Law. Thus, any member of one party (Government or terrorist group) may be considered a Combatant, and be granted the status of Prisoner of War until there is enough ground to affirm he has committed a crime in international law (terrorism or other crimes against humanity). Therefore a legal process can begin in a court competent to deal with such offenses.
Only then his condition will change from Prisoner of War to War Criminal, because there is enough proof he has committed a crime (using illegal methods of combat, causing widespread terror to the population), and the prosecution against him may begin.
When there is doubt about the detainee’s status, he shall be considered a Prisoner of War, because any person engaged in combat must have it granted, until proper clarification.
When there is sufficient evidence that terror was used, or is planned to be used, against the civilian population, and it is clear that terrorism is an illegal method of warfare, there is enough data to affirm that there is an Armed Conflict, and the detained involved in terrorism is a potential Combatant, and a potential Prisoner of War if detained.
A Prisoner of War is defined as any Combatant that falls in the hand of the enemy, be it in a regular Armed Force, a guerrilla, an insurrectional group or a terrorist. In order to be a Combatant, the person must have the requisites below (already explained in Chapter Five):
- Have a commander responsible for their subordinates (chain of command);
- Have a distinctive sign recognizable at a distance (uniforms, fatigues);
- Holding weapons ostensibly;
- Respecting, in their operations, the laws and uses of war.
While a potential terrorist is considered a combatant, surveillance procedures, interception of communication and individual arrest and detention for interrogation, all with no judicial mandate, are executive legal methods to gather intelligence of the enemy, and within the legal scope of International Humanitarian Law and the Law of Armed Conflict.
When a person suspected of terrorism is detained, the status of Prisoner of War must be granted to him, because he is a legal Combatant until there is enough evidence that he committed crimes in regard of international law.
As a Prisoner of War, he will receive the proper treatment, in the following terms:
- He will be detained until the end of hostilities against that group, because he cannot be released and join the Adverse Party again;
- He has no access to judicial writs like Habeas Corpus, or to lawyers, but he is not considered as having committed any crime in national law;
- He cannot communicate with any other person than the representative of the Red Cross and Red Crescent Movement, in order not to give sensitive information to the Adverse Party (the terrorist group or affiliated persons);
- He will be treated humanely, and in no way be obliged to answer any questions during his interrogation; and
- He will in no hypothesis be tortured, and confessions given by torture will be declared null and void, with overall compensation for the individual.
However, when there is enough basis for the accusation of participation or action in a terrorist act, his status will change from Prisoner of War to a Criminal (for terrorism or crimes against humanity) in International Law, because s/he did not fulfill the requirements to be a POW: he did not respect the law and rules of war when he used illegal methods of warfare by causing widespread terror in the civilian population.
Also, s/he did not distinguish him/herself from the civilian population, because s/he did not wear uniforms or fatigues, which is a violation of the Principle of Discrimination; neither did s/he hold his weapons ostensibly. Those are clear examples of Perfidy, a violation of IHL.
Then, the alleged criminal will be prosecuted by an international (or internationalized) Court for the crimes committed. If there is not enough evidence for prosecution, s/he will be released.
However, in any cases he must be treated humanely, i.e., not tortured nor suffering from cruel, inhuman or degrading treatment. If he is considered a national criminal, he will be sent to national court to prosecution. In no way inhumane handling is acceptable.
The case concerning the death of Osama bin Laden is a clear example of how the correct legal framework can influence the legitimacy of an operation. He used one of his wives as a human shield to resist the arrest (According to the unofficial version of the scene. ABC News May 02, 2011, ). In the end the Military Objective has been achieved, but there was a collateral damage, the death of the human shield.
If one tries to analyze the case from the human rights framework, the operation was completely illegal, because in HR law there is no collateral damage. Negotiation or other non-lethal methods should have been used, and siege all the compound until he gives up, or there is an opportunity to neutralize him with no risk to the hostage, or the hostage is in clear and immediate danger. But this is not a feasible point of view.
However, if the observer studies the case using the International Humanitarian Law framework, bin Laden was considered a Combatant, so a Military Objective, and his neutralization was considered a Military Necessity. There was no time for a siege, or negotiation, because it was a situation that required a swift decision. The death of the human shield, although unfortunate, was a collateral damage proportional to the Objectives achieved.
Bin Laden could be arrested and go to a trial in an International Court for Crimes in International Law (Although international courts have subsidiary responsibility (see Chapter 6), the trial of Osama bin Laden would be quite complicated in national courts, since many countries (USA, England and France, among others) would claim that they have jurisdiction on the crimes committed by bin Laden or Al Qaida in their territories (competence ratione loci), and against their citizens (competence ratione personae)), that is, terrorism and/or crimes against humanity. But the US response to terrorism in previous cases, with allegations of torture and inhumane treatment, may have made him take the decision to resist from arrest.
The bin Laden case was valid and justifiable from the IHL framework, but it is far from the ideal long term solution to international terrorism, that must be sought if a country desires to fight the root causes of terrorism, and preventing terrorist groups from recruiting new members and demoralizing their leaders.
A so
lely military response to terrorism may bring a short-term solution, but it creates long-term problems, and the threat may be dormant, waiting for an opportunity to rise again. Also, the State shall not use illegal methods of warfare to fight combatants, even when they use perfidy or other forbidden instruments against him.
A comprehensive response to terrorism must include:
- The gathering of intelligence (The operation of gathering intelligence (from the enemy) is different than gathering proof in inquiries for criminal instruction (against the citizen). In IHL, there is no need for a judicial warrant to gather intelligence from the enemy, because it is within the executive power of any military operation) with legal methods (in International Humanitarian Law, the proper legal framework applicable), so they can be used in court for a fair trial;
- An International or Internationalized Criminal Court, competent to prosecute and punish for crimes in international law, like terrorism;
- An executive organ to comply its judicial mandates, including arrest, detention, intimations and notifications, which can be a Peacekeeping Operation. Example: the functions and authority given to the United Nations Transitional Administration in East Timor (UNTAET) and United Nations Mission in Kosovo (UNMIK).
- The respect of the dignity of the human being, in all cases and