ICRC Report to CIA: Treatment of High Value Detainees Amounted to Disappearance and Torture

Nehal Bhuta is Assistant Professor of Law at the University of Toronto and a member of the EJIL’s Scientific Advisory Board. . He has worked with the International Justice Program of Human Rights Watch and was a consultant with the International Center for Transitional Justice in New York. In 2008/2009 he is a Hauser Research Scholar at New York University Law School.

The New York Review of Books has today posted in full the ICRC’s report (of February2007) to the CIA based on interviews with 14 “High Value Detainees”  (HVDs) who were “rendered” to CIA-run “blacksites” and held there for several  years, before finally being transferred to Guantanamo. The ICRC interviewed the HVDs one at a time as to their treatment, and provides quite a nauseating narrative of abuse, degradation and humiliation. Unsurprisingly, the ICRC concludes that the treatment met the legal definition of both enforced disappearance and torture. According to the Report’s Conclusion:

 All of the fourteen were subjected to a process of ongoing transfers to places of detention in unknown locations and continuous solitary confinement and incommunicado detention throughout the entire period of their detention. The fourteen were placed outside the protection of law during the time they spent in the CIA detention program. The totality of the circumstances of which they were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, incontravention of international law.

Moreover, and in addition to the continuous solitary confinement and incommunicado detention, which was itself a form of ill-treatment, twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regimes. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain, and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization.

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constitutes a torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment, constituted a gross breach of medicine ethics and, in some cases, amounted to participation in torture and/or cruel, inhumane, or degrading treatment.

One thing that struck me when reading the report was the similarities  between the nature and purpose of the techniques used by the Americans, and those used by the Egyptian and Syrian (and Iraqi) intelligence services. The latter are all much more “low-tech” but have the same aim: to crush the spirit and personality of the detainee by a devastating combination of physical and psychological mistreatment administered repeatedly over time. Indeed, some of the techniques are exactly the same: beatings, confinement in small spaces, enforced nudity, and deprivation of basic hygiene facilities. The idea is that even if detainee is saying anything (including fabricating information just to stop the pain), by breaking their will one will eventually hear from them everything that they might know, and thus obtain intelligence that can be used for further inquiries and interrogation.

None of this is about ticking bombs – indeed, the techniques presume a fairly prolonged regime of mistreatment. It is about crushing a human being’s sense of themselves as human.