Background
"He has been dehumanised"
Saudi national Abu Zubaydah has been in custody in Guantanamo Bay for more than ten years. One of his counsels is awarded her doctorate in Leiden last wednesday. “He was used as a guinea pig: all those methods of torture were tested on him.”
Vincent Bongers
Wednesday 18 December 2013

“We know – from CIA documents – that in 2002, Abu Zubaydah was tortured by means of waterboarding as many as 83 times within the space of one month. Zubaydah has been locked in a small black box for long periods and had his head frequently smashed against a wall. We know quite a lot of details about how he has been abused.”

Scottish lawyer Helen Duffy, a specialist in human rights practising in The Hague, is one of Zubaydah’s counsels. Yesterday, she was awarded her doctorate in Leiden for her work on the strained relationship between international law and what has become known as the “war on terror”.

Abu Zubaydah was born in Saudi Arabia in 1971 and was arrested in Pakistan in 2002. According to the Americans, he held an important position in Al Qaida. Duffy continues the story: “Initially, he was jailed in a ‘black site’ – a secret prison – in Thailand, then moved to Morocco and illegally jailed in Lithuania and Poland. After all that, he was sent to Guantanamo Bay where he is to this day. He has never had a trial and never officially been charged with anything. He has never been tried before a court that ruled that his detention was justified.”

As there are no legal grounds to keep him detained, he should be released. That’s all there is to it, in theory. Nobody knows whether he will actually be released or not. It’s primarily a political issue.”

Duffy has initiated legal actions against the countries that cooperated in his abduction and torture in illegal prisons. At present, the European Court of Human Rights in Strasbourg is hearing the case against Poland, but Lithuania will be called to account too. “After 9/11, the CIA set up the ‘extraordinary rendition program’, which, on occasion, has been described as a spider’s web of illegality spun across the whole world. People who were suspected of terrorism were arrested everywhere.”

54 countries cooperated; the Netherlands, however, is not on the list. People were kidnapped and jailed in prisons that did not officially exist. “While in custody, they were subjected to ‘enhanced interrogation techniques’, which of course is just a euphemism for torture. Our sources reveal that Zubaydah was used as a guinea pig: he was the first to be subjected to interviewing techniques like waterboarding. All those methods of torture were tested on him.”

This has left Zubaydah seriously damaged, both physically and mentally, his counsel claims. “International law only allows isolation for a number of days, or in exceptional cases, a few weeks. He is still in solitary confinement and has been since 2002. He cannot communicate directly with the outside world – he’s not allowed to. And there are sixteen other prisoners in Guantanamo living in the same tough conditions.”

Due to the lack of direct communication, even though she is a lawyer, she only has access to “information in the public domain”, she says. It has emerged, from the available information, that he had been detained in a secret gaol in Poland. The Court will decide whether Poland collaborated with the CIA and whether it is guilty of facilitating torture and illegal detention.

“We want these nations to admit that they have assisted in these illegal practices so they can be held accountable. We want an inquiry into the responsible parties. People think that Zubaydah and his fellow prisoners are not civilians with rights and duties to be prosecuted as normal. You could say they have been dehumanised: their only relevance is the information they might hold. No one cares that these people are human beings: we have to change that mentality.”

In her doctoral dissertation, Duffy discusses the influence of the war on terror on international law.

“I don’t think that the legal framework has changed drastically, although there have been some shifts. For instance, since 9/11, it’s become more acceptable to use violence outside your own national boundaries as self-defence against terrorists, even in countries that are not responsible for those terrorists.

“For many individuals and communities, the war on terrorism has had dramatic consequences, but even so, most nations do not consider it enough to make it acceptable to torture people.”

Duffy thinks that the options for controlling terrorism by legal means are promising. “We have the legal structure: we have extradition treaties, human rights treaties, counter-terrorism treaties, Security Council resolutions and criminal law, of course.”

Nonetheless, pressure doesn’t always work on countries that harbour terrorists and refuse to extradite them, as Duffy explains: “International law is actually difficult to enforce – that’s its weakness.”

She continues: “Take America: like any other country, it is obliged to either try its prisoners or release them, but that’s not happening. It’s important to put pressure on countries so that they observe international law, but it’s not easy and there aren’t any straightforward solutions. The issues are primarily political. As a lawyer, you try to expose the fact that some countries fail to respect human rights and international law. And we use the legal means available to us to combat violations of rights. After that, it’s up to the politicians to change the situation.”

Duffy is cautiously optimistic. “Take the Yugoslavia Tribunal: at first, everyone said, ‘Oh, we’ll never catch Karadzic and Mladic’, yet we did. In the current legal framework, these matters need time. Nations must decide that they will uphold international agreements. But although we face some major challenges, it does not mean to say that governments can ignore international law and decide to eliminate suspected terrorists by means of targeted killings.”

Duffy adds: “When I presented the first version of this research in 2005, I did not assume that people were being tortured in Guantanamo. Now I know better. I was naive. It took some time for the world to realise what was going on. Now all nations should show us what they have learned from it and how they are going to stop it happening again.”

The lawyer has noticed how resistance to illegal operations is rising. “Guantanamo has been condemned all over the world and it comes up in negotiations between the United States and other countries; they’re discussing the black sites too.”

There is more focus on the link with human rights. “International players have noticed that their approach is counter-productive: the worst violations of human rights in the war on terrorism are used to recruit terrorists.”

In a press conference in 2008, Barack Obama himself admitted that “Guantanamo is probably the number one recruitment tool that is used by these jihadist organizations”. Despite that, he has not succeeded in closing down the camp and Abu Zubaydah is still in custody there, without any hope of release.