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KUALA LUMPUR WAR CRIMES TRIBUNAL

REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS (INCLUDING NOTES OF PROCEEDINGS)

LEGALITY OF UNILATERAL EXEMPTION FROM COMPLIANCE WITH PROVISIONS OF TREATIES INVOLVING INTERNATIONAL HUMANITARIAN LAW ADVISORY OPINION OF 31 OCTOBER 2009


Official citation:

Legality of unilateral exemption from compliance with

provisions of Treaties involving International Humanitarian Law, Advisory Opinion, K.L.W.C.T. Reports 2009, p.1

ISBN 978-967-10817-0-9

Published by:

Kuala Lumpur Foundation to Criminalise War Yayasan Al-Bukhary 5th Floor, No. 88, Jalan Perdana Taman Tasik Pedana 50480 Kuala Lumpur Printed by:

Aslita Sdn. Bhd. No. 18, Jalan 4/10B Spring Crest Industrial Park Batu Caves, 68100 Kuala Lumpur


Legality of Unilateral Exemption from Compliance with Provisions of Treaties involving International Humanitarian Law

ADVISORY OPINION


CONTENTS

No.

Particulars

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Advisory Opinion (Extempore)...................................... 1-2

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Separate Opinion of:(a) Alfred Lambremont Webre..................................... 3-11 (b) Niloufer Bhagwat..................................................... 13-27 (c) Francis A. Boyle........................................................ 29 (d) Salleh Buang.............................................................. 31-37 (e) Shad Saleem Faruqi.................................................. 39-40 (f) Tunku Sofiah Jewa.................................................... 41-48

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Kuala Lumpur War Crimes Commission . ................... 51-172 – Notes of Proceedings 30h October 2009

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Kuala Lumpur War Crimes Tribunal ............................ 175-300 – Notes of Proceedings 31st October 2009

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Charter of the Kuala Lumpur War Crimes .................. 303-331 Commission & Rules of Procedure and Evidence of the Kuala Lumpur War Crimes Tribunal


Advisory Opinion

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KUALA LUMPUR WAR CRIMES TRIBUNAL

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YEAR 2009 31 October 2009

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ADVISORY OPINION 10

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Present: Abdul Kadir Sulaiman; Francis A. Boyle; Tunku Sofiah Jewa; Salleh Buang; Niloufer Bhagwat; Shad Saleem Faruqi; Alfred Lambremont Webre. Concerning a request from the Kuala Lumpur War Crimes Commission vide Application No. 1 of 2009, for an Advisory Opinion filed with the Registrar of the Tribunal on the 8th day of October, 2009 and which reads, after amendments made orally on 31st day of October, 2009, as follows: Whether a Head of State and/or Government can unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) dealing with international humanitarian law, and in particular as set out in Article 7 paragraph (1)(a)-(d) of the Charter of the Kuala Lumpur War Crimes Commission, duly ratified by the State without first abrogating the relevant treaty/convention.

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THE TRIBUNAL, composed as above, gives the following Advisory Opinion: On the application for an Advisory Opinion as contained in Application No. 1 of 2009 submitted to the Tribunal by the Kuala Lumpur War Crimes Commission, the Tribunal has heard submissions by the Applicant and deliberated over the matter and here are its views: 1.

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On the question of threshold jurisdiction, the Tribunal is unanimous (7:0) in giving the opinion that this Tribunal has jurisdiction to consider Application No. 1 of 2009.


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On the question of the substance of the opinion sought, the view of the Tribunal is unanimous (7:0) that a Head of State and/or Government cannot unilaterally exempt itself from complying with any provision of any international treaty/convention (such as the Geneva Conventions) dealing with international humanitarian law, and in particular as set out in Article 7 paragraph (1)(a)-(d) of the Charter of the Kuala Lumpur War Crimes Commission duly ratified by the State without first abrogating the relevant treaty/convention.

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On the question of whether international humanitarian law can be abrogated, revoked or denounced by such Head of State or Government, the Tribunal is again unanimous (7:0) that international humanitarian law cannot be abrogated, revoked or denounced by such Head of State and/or Government.

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Ultimately, the Tribunal’s advisory opinion sought is by way of unanimous decision that a Head of State and/or Government cannot unilaterally exempt itself from complying with any provision of any international treaty/convention (such as the Geneva Conventions) dealing with international humanitarian law, and in particular as set out in Article 7 paragraph (1)(a)-(d) of the Charter of the Kuala Lumpur War Crimes Commission duly ratified by the State without first abrogating the relevant treaty/convention.

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Done in English, in Kuala Lumpur, Malaysia this thirty-first day of October, 2009, in two copies, one of which will be placed in the archives of the Tribunal and the other transmitted to the SecretaryGeneral of the United Nations.

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(Signed) Abdul Kadir Sulaiman President

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(Signed) Nizam Bashir Registrar Judges Francis A. Boyle, Salleh Buang, Niloufer Bhagwat, Shad Saleem Faruqi, Alfred Lambremont Webre and Tunku Sofiah Jewa append separate opinions to the Advisory Opinion of the Tribunal.

(Initialled) A.K.S. (Initialled) N.B.

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Separate Opinion of Alfred Lambermont Webre

SEPARATE OPINION OF ALFRED LAMBREMONT WEBRE

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Scope of Advisory Opinion. Jurisdiction of the Tribunal to give the advisory opinion requested. Article 7 paragraph (1)(a)-(d) of the Charter.

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Treaty or convention once ratified or the procedure for accession to the treaty being complete render it enforceable and binding unless abrogated, revoked or denounced. However, no abrogation, revocation or denouncement can be made in respect of a treaty or convention having the status of jus cogens. Hague and Geneva Conventions are jus cogens. Obligations of treaty or convention having status of jus cogens are binding even if abrogated, revoked or denounced. On October 8, 2009, the Kuala Lumpur War Crimes Commission (the “Commission”) filed an Application for Advisory Opinion containing the following question: Whether a Head of State and/or Government can unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) duly ratified by the State without first abrogating the relevant treaty/convention.

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A hearing has been set for October 31, 2009 at 9:30 am to consider the Application. 35

FINDINGS AND OPINION 1.

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Filing of Application - The Application of the Kuala Lumpur War Crimes Commission was properly filed pursuant to Article 7(2) of the Charter of the Kuala Lumpur War Crimes Tribunal (the “Tribunal”).


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Application and Subject Matter Jurisdiction of Article 7(1) of the Charter - The subject matter jurisdiction of this Tribunal is set out in Article 7(1) of the Charter as follows:

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7(1). The Commission and the Tribunal shall have jurisdiction under this Charter in respect of the following crimes: (a) Crimes against peace; (b) Crimes against humanity; (c) Crime of genocide; (d) War Crimes.

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In this regard, the present wording of the Application may be excessively broad. By its wording the Commission appears to seek an Advisory Opinion applying to “any provisions of any International Treaties/Conventions (such as the Geneva Conventions).” The reference to the “Geneva Conventions” is set out in the Application as an example of “International Treaties/Conventions,” not a limitation to the adjective “any” as set out in the Application. Whether a Head of State and/or Government can unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) duly ratified by the State without first abrogating the relevant treaty/convention. I take judicial notice of the fact that since the ratification of the United Nations Charter there have been reportedly more than 40,000 international agreements and conventions signed and ratified, and deposited with the United Nations Secretary General as Treaty Depositary pursuant to Article 102 of the U.N. Charter. These international treaties and conventions address many subject matters outside of the competence of the subject matter jurisdiction of this Tribunal under Article 7(1) of its Charter. Therefore, I conclude that the Application should be narrowed to those international treaties and conventions relating to the subject matter jurisdiction of the Tribunal under Article 7(1) of its Charter. I find that such a limiting of the Advisory Opinion does not defeat the intent of the Application, as it does not appear to have been the intent of the Commission to submit an Application outside the jurisdiction of this Tribunal.

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Thus it would not be equitable, given intent of the Commission and its jurisdiction under Article 7(1), to conclude that this Application should be dismissed as being overly broad and outside of the jurisdiction of this Tribunal. This Tribunal can only issue an Advisory Opinion only with respect to that subject matter which is expressed in Article 7(1). Thus my Advisory Opinion will relate to the Application solely with regard to any provisions of any International Treaties/Conventions (such as the Geneva Conventions) which apply to the crimes of Crimes against peace, Crimes against humanity, Crime of genocide, and War Crimes, and which are duly ratified by the State. Such treaties and conventions constitute a core part of international humanitarian law. 3.

Advisory Opinion on Question of Law -

ADVISORY OPINION: It is our Advisory Opinion that a Head of State and/or Government cannot unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) which apply to the crimes of Crimes against peace, Crimes against humanity, Crime of genocide, and War Crimes, and which are duly ratified by the State without first abrogating the relevant treaty/convention.

DISCUSSION: We reach this conclusion from treaty law, case law, and jus cogens in international humanitarian law. Sources of International Humanitarian Law The primary sources of international humanitarian law are “treaties, customary law (jus cogens, state practice and opinio juris), case law, and military doctrine contained in field manuals and other military publications and regulations. International courts, ad hoc tribunals and commissions, and domestic courts all enforce and interpret international humanitarian law. The International Court of Justice has addressed international


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humanitarian law in a few of its judgments. Various ad hoc tribunals, most notably the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda ( ICTR), have tried individuals for violations of international humanitarian law.” Source: http://www.asil.org/ihl1.cfm#VI_2 We will first examine applicable case law in international humanitarian law for relevant legal precedents by which this Tribunal is bound in applying international humanitarian law to the instant Application. The sources for case law from International Courts and Tribunals include: Judgments of the International Court of Justice are available on its website (http://www.icj-cij. org/); International Criminal Court (http://www.icc-cpi.int/); International Criminal Tribunal for Yugoslavia (http://www. un.org/icty/); International Criminal Tribunal for Rwanda (http://69.94.11.53/default.htm); Special Court for Sierra Leone (http://www.sc-sl.org/). Case law sources also include relevant of national courts acting pursuant to statutes of universal war crimes jurisdiction. Croatia v. Serbia (International Court of Justice ICJ) Legal issues raised by the instant Application were addressed by The International Court of Justice (ICJ) in a November 18, 2008 judgment in Croatia v. Serbia. In that case, the ICJ functionally decided that Respondent Serbia had not filed such a denunciation [abrogation] of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) [http:// www.un.org/millennium/law/iv-1.htm ]. Hence Respondent Serbia lacked the authority to unilaterally exempt itself from the provisions of the Genocide Convention. Respondent Serbia argued that it had authority to unilaterally exempt itself from the provisions of the Genocide Convention because the Federal Republic of Yugoslavia (FRY) had not assumed the obligations of its predecessor Socialist Federal Republic of Yugoslavia (SFRY) under the Genocide Convention. The ICJ found that beginning on April 27, 1992, “FRY would be bound by the obligations of a party in respect of all the multilateral conventions to which the SFRY [Socialist Federal Republic of Yugoslavia] had been a party at the time of its dissolution, subject of course to any reservations lawfully

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made by the SFRY limiting its obligations. It notes that it is common ground that the Genocide Convention was one of these conventions, and that the SFRY had made no reservation to it; thus the FRY in 1992 accepted the obligations of that Convention, including Article IX providing for the jurisdiction of the Court and that jurisdictional commitment was binding on the Respondent at the date the proceedings were instituted.”

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The remedy for Respondent Serbia would have been to abrogate the Genocide Convention under Article XIV, which specifies that the Convention “shall remain in effect for a period of ten years as from the date of its coming into force. It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.”

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Respondent Serbia had not filed such a denunciation of the Genocide Convention. Hence Respondent Serbia lacked the authority to unilaterally exempt itself from the provisions of the Genocide Convention.

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Preliminary objections

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Summary of the Judgment of 18 November 2008 In sum, the Court, taking into account both the text of the declaration and Note of 27 April 1992, and the consistent conduct of the FRY [Federal Republic of Yugoslavia] at the time of its making and throughout the years 1992-2001, considers that it should attribute to those documents precisely the effect that they were, in the view of the Court, intended to have on the face of their terms: namely, that from that date onwards the FRY would be bound by the obligations of a party in respect of all the multilateral conventions to which the SFRY [Socialist Federal Republic of Yugoslavia] had been a party at the time of its dissolution, subject of course to any reservations


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lawfully made by the SFRY limiting its obligations. It notes that it is common ground that the Genocide Convention was one of these conventions, and that the SFRY had made no reservation to it; thus the FRY in 1992 accepted the obligations of that Convention, including Article IX providing for the jurisdiction of the Court and that jurisdictional commitment was binding on the Respondent at the date the proceedings were instituted. In the events that have occurred, this signifies that the 1992 declaration and Note had the effect of a notification of succession by the FRY to the SFRY in relation to the Genocide Convention. The Court concludes that, subject to the more specific objections of Serbia to be further examined, it had, on the date on which the proceedings were instituted, jurisdiction to entertain the case on the basis of Article IX of the Genocide Convention. That situation continued at least until 1 November 2000, the date on which Serbia and Montenegro became a Member of the United Nations and thus a party to the Statute of the Court. Having established that the conditions for its jurisdiction are met and without prejudice to its findings on the other preliminary objections submitted by Serbia, the Court concludes that the first preliminary objection, “that the Court lacks jurisdiction�, must be rejected. Source: International Court of Justice Summary 2008/5 18 November 2008 http://www.icj-cij.org/docket/files/118/14913.pdf Jus Cogens, Nuremberg Trials and International Humanitarian Law International humanitarian law prohibits a Head of State or State from unilaterally exempting itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) which apply to the crimes of Crimes against peace, Crimes against humanity, Crime of genocide, and War Crimes, and which are duly ratified by the State without first abrogating the relevant treaty/convention. The London Charter of the International Military Tribunal, published August 8, 1945, defined crimes against peace, crimes

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against humanity, and war crimes, and explicitly provided, in Article 7 (below), that “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.� Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a)

CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

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WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

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CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

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Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. [Emphasis added] http://en.wikisource.org/wiki/London_Charter_of_the_ International_Military_Tribunal Under international humanitarian law, Heads of State or States may not exempt themselves unilaterally from responsibility for the crimes of Crimes against peace, Crimes against humanity, Crime of genocide, and War Crimes. Ever since the London Charter and the Nuremberg Trials this prohibition has been a “practice of international law” and hence part of customary international law, or jus cogens. 1

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20 See the following analysis re The Nuremberg Trials and the London Charter as a “practice of international law and hence part of customary international law, or jus cogens. 1

“In the period just prior to the June 26, 1945 signing of the Charter of the United Nations, the Governments participating in its drafting were opposed to conferring on the United Nations legislative power to enact binding rules of international law. As a corollary, they also rejected proposals to confer on the General Assembly the power to impose certain general conventions on States by some form of majority vote. There was, however, strong support for conferring on the General Assembly the more limited powers of study and recommendation, which led to the adoption of Article 13 in Chapter IV of the Charter. It obliges the United Nations General Assembly to initiate studies and to make recommendations that encourage the progressive development of international law and its codification. The Nuremberg Principles were developed by UN organs under that limited mandate. “Unlike treaty law, customary international law is not written. To prove that a certain rule is customary one has to show that it is reflected in state practice and that there exists a conviction in the international community that such practice is required as a matter of law. (For example, the Nuremberg Trials were a “practice” of the “international law” of the Nuremberg Principles; and that “practice” was supported by the international community.) In this context, “practice” relates to official state practice and therefore includes formal statements by states. A contrary practice by some states is possible. If this contrary practice is condemned by other states then the rule is confirmed.

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By ruling that a Head of State and/or a State cannot unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) which apply to the crimes of Crimes against peace, Crimes against humanity, Crime of genocide, and War Crimes, and which are duly ratified by the State without first abrogating the relevant treaty/convention, this Tribunal will reinforce a cornerstone of international humanitarian law, and take an important step toward criminalizing war. (Signed) Alfred  Lambremont WEBRE

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“In 1950, under UN General Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.” In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text above was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the International Law Commission, 1950, Vol. II, pp. 374-378).”


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Separate Opinion of Niloufer Bhagwat

SEPARATE OPINION OF NILOUFER BHAGWAT

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Treaty or convention once ratified or the procedure for accession to the treaty being complete render it enforceable and binding, as exemplified by the legal maxim pacta sunt servanda, unless abrogated, revoked or denounced. However, no abrogation, revocation or denouncement can be made in respect of a treaty or convention having the status of jus cogens.

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Hague and Geneva Conventions are fundamental to the respect of the human person and elementary considerations of humanity and have to be observed by all States, whether or not ratified by that State, as it contains intransgressible principles of International customary Law.

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Hague and Geneva Conventions are jus cogens. Obligations of treaty or convention having status of jus cogens are binding even if abrogated, revoked or denounced.

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The Kuala Lumpur War Crimes Commission has jurisdiction under its Charter, to receive and investigate complaints from victims of wars and armed conflicts in relation to crimes against peace, the crime of genocide, war crimes, crimes against humanity and other serious offenses recognized in International Law from regions which have witnessed successive wars in Iraq, Afghanistan, Palestine and Lebanon and other war crimes referred to the Commission. The Commission being conscious, that several International treaties/conventions for the protection of humanity and the advancement of civilization are being violated in different military theatres, even as the colonial restructuring of countries and their economies, by military and other means continues, seriously endangering even ancient rules for peaceful co-existence ; has referred for the advisory opinion of this Tribunal, an issue of substantial public importance to International law, at a critical moment of history, when there is once again an absolute descent into barbarism, compounded by the misuse of advanced lethal technology for weaponry, even as people all over the world demand accountability for this criminal conduct.


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The issue has been framed in clear and precise terms in Application No.1 filed with the registry of the Tribunal on 8 10.2009 in accordance with Article 7(2)(a) and (b) of the Charter of the Kuala Lumpur War Crimes Tribunal. The specific question is reproduced below: Whether a Head of State and /or Government can unilaterally exempt itself from complying with any of the provisions of any International Treaties/Conventions (such as the Geneva Conventions) duly ratified by the State without first abrogating the relevant treaty/Convention.

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The issue related to the obligation of the head of state/ government under International Law to enforce treaties in peace and war, is of substantial public importance, in view of the public outcry from Afghanistan, Iraq, Palestine, Lebanon, from what is being referred to as the ‘Af-Pak’ frontier region. Reports by Humanitarian organizations, United Nations agencies and Inquiry commissions/committees appointed by the U.N. Human Rights Council, including the recent Goldstone report on the war on Gaza, refer to collective killings of civilians and specific instances of criminal misconduct, the merits of which will be determined in the trials to take place before this Tribunal. Dr. Nawal Majeed Al Sammaria, Iraq’s Minister for Women Affairs, has recently reported to the General Assembly, that out of 170 babies born in September 2009 at the Fallujah General Hospital, in a city which under occupation was stormed by the US-UK alliance, 24 % of the babies died in the first week after birth, while another 75 % were born deformed. In contrast, six months before the 2003 invasion of Iraq, out of 560 live births at Fallujah, only six died in the first week, though Iraq was then under sanctions and only one was born with a deformity. The reality is, that instead of an advance towards implementation of mankind’s quest for peace and harmony, to ensure development as a fundamental human right of all citizens, the first decade of the 21st Century has seen successive predatory wars. The means and methods adopted to conduct these wars have raised several questions on the nature of functioning of the Security Council of the

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United Nations, its ability and will to act in accordance with the Charter of the United Nations, in the context of its acquiescence to the occupation of several states and the consequent inability to enforce International laws against those openly flouting conventions/treaties in force, including treaties/conventions which apply to armed conflict, for the protection of civilians, wounded and sick soldiers, treatment of prisoners and regulation of the nature of weapons permitted to be used in war, among other aspects, which are regulated by the four Geneva Conventions adopted on 12th August 1949, to amplify, extend and codify the customary principles of International law and conventions that had been entered into, including the St. Petersburg declaration of 1868, the Brussels Conference of 1874 and the earlier Hague Conventions of 1899 and 1907, among other conferences and treaties on the Laws of War. The objective of these conventions was to control and regulate the savagery of war, even as different states from the second half of the 19th Century onwards, influenced by humanitarian leaders and scholars, sought an end to the indiscriminate waging of war with indiscriminate weapons, with horrific consequences for civilians and soldiers, chronicled by epics and outstanding literary works of all continents, lifting the veil from the romanticism and heroism of war propagated through national chauvinist rhetoric, to reveal the degradation and the mindless cruelty of war, inflicting manifold miseries on millions in the field of battle and in warfare at sea and from the air.

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In the period post 1945, with memories of the holocaust of 50 million dead of every nationality, not restricted to any one national, racial or religious group as is often propagated, with one country the United States having used the nuclear weapon aptly described by a Physicist who had worked in the Manhattan project as ‘the shatterer of worlds’, though the use of weapons with such destructive force, is strictly forbidden by the laws of war of every civilization, whether Buddhist, Hindu, Islamic, Chinese, Christian, African, Jewish and Native American from time immemorial, as rightly opined by Judge Christopher Gregory Weeramantry in his separate opinion on the “Legality of the threat or use of Nuclear Weapons” (I.C.J. Reports 1996). In the Second World War in one country alone


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the toll was 25 million killed, in a period when until 1945, advanced weaponry of the kind used to-day were not invented. This was the backdrop of the overwhelming destruction and human misery of war which influenced the adoption of the four Geneva Conventions of 12th August 1949 on the Laws of War, of which the first Geneva Convention relates to the amelioration of the conditions of the wounded and sick of the armed forces in the field, the second Geneva Convention to the amelioration of the conditions of the wounded, sick and shipwrecked members of the armed forces at Sea, the third Geneva Convention to the treatment of prisoners of war and the fourth Geneva Convention is for the protection of civilians in times of war. The 1949 Geneva Conventions are universal in application in so far as 194 states have ratified or effected accession to the conventions. Whereas the 8th June 1977 Protocol Additional 1 to the Geneva Conventions concerned with the protection of victims of armed conflicts, has been ratified/acceeded to by 168 states, and the Protocol Additional II to the Geneva Conventions, relating to the victims of non-armed International conflicts has been ratified or acceeded to by 164 States, with both these Protocols receiving the support of more than twothirds of member states of the United Nations, with some states ratifying or acceding to these Protocols with‘reservation’, that is clarifying that the state does not accept some provision of the convention or interprets the convention in a particular manner, which must be acceptable to other states ratifying or having acceeded to the convention, provided that the reservation is not destructive of the essential provisions of the convention. 5.

The International Court of Justice, in the early years of the establishment of the Court, in the Corfu Channel Case I.C.J. Reports 1949 held that the Hague and Geneva Conventions enjoyed a broad accession, “as they are fundamental to the respect of the human person and elementary considerations of humanity”, and that these rules have to be observed by all states, whether or not they have ratified the Geneva Conventions, as these Conventions contain “intransgressible” principles of International customary Law. In 1996 the Advisory Opinion of the International Court of Justice on the ‘Legality of the

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threat or use of Nuclear Weapons’ (I.C.J. reports 1996) when the General Assembly of the United Nations sought the opinion, with unanimity reiterated this position, observing:

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The extensive codification of humanitarian law and the extent to the accession to the resultant treaties, as well as the fact that the denunciation clauses that existed in the codification of instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universally recognized humanitarian principles These rules indicate the normal conduct and behaviour expected of states.

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The Court in the same advisory opinion with reference to the applicability of the 1949 Geneva Conventions and the 1977 Additional Protocols I and II to the Geneva Conventions and to the Hague Conventions held - “… that all States are bound by those rules in the Additional Protocol I which when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause reaffirmed in the first article of Additional Protocol I… the Court held that there can be no doubt as to the applicability of humanitarian law to nuclear weapons” The Court in its advisory opinion highlighted that in their written statements filed through authorized representatives before the Court, the United States, UK and the Russian Federation had conceded that the “Law of armed conflict governs the use of nuclear weapons just as it governs the use of conventional weapons”.

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Almost 50 years earlier, at the ‘Trial of the Major War Criminals’, the Nuremberg International Military Tribunal had already held that the humanitarian laws of war included in the Regulations to the Hague Convention IV of 1907 on the Laws of War, “were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war”.

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It must be understood by concerned citizens and lawyers interested in the prosecution of war criminals that International Law and national laws are “overlapping circles”, as presently there is an attempt by certain governments to obfuscate the interpretation of treaties/conventions, to further the exercise

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of arbitrary prerogative by heads of States/governments and to prevent the prosecution of war criminals within national and international jurisdiction.

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Without prejudice to the trials which will take place hereinafter, and the individual and specific defences which may be raised, which this Tribunal does not wish to foreclose, it is necessary to state that the issue referred for Advisory Opinion is not abstract. This is borne out by documents in the public domain of which this Tribunal can take judicial notice of and refer to, without going into the merits of these reports, legal opinions and positions taken. I refer to the two reports of the Attorney General Lord Goldsmith to the government of former Prime Minister Tony Blair, on the legality/illegality of the war on Iraq, dated 3rd March 2003 and 13th March 2003 and the “Inquiry into the Treatment in US Custody” relating to rendition of prisoners and their detention and torture in the prisons of Abu Ghraib, Guantanamo Bay and Bagram among others, made public in the United States by the US Senate Armed Forces Committee. This report dated 22nd April 2009, in the section titled “The Presidential Order Opens the Door to Considering Aggressive Technique” reports that:

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The President’s order closed off the application of Common Article 3 of the Geneva Convention which would have afforded minimum standards of human treatment to al Qaeda and Taliban detainees and the decision to replace legal compliance with Geneva Conventions…led to interpretation which impacted the treatment of detainees in U.S. custody. 9.

This report of the Armed Forces Senate Committee also refers to a written decision of 7th February 2002, by the President of the United States of America, head of State/government, that Common Article 3 of the Geneva Conventions on the Laws of War, did not apply to alleged Al Qaeda members and Taliban. It is true that the Secretary of State, Mr. Colin Powel, attempted to advise the President of the implications of this interpretation, however true to the General’s tradition, the opposition was feeble and related more to the possible impact on the treatment of U.S. soldiers as prisoners of war, as a reaction to such a unilateral position on the Geneva Conventions by the US administration.

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10.

Several other public Documents of the US Congress and the US Executive Branch are necessary to cite, indicating that lawyers in the US department of Justice, more specifically the Office of Legal Counsel in the department of Justice of the United States administration, wrote memorandums at the request/direction of senior government officials of the US administration inter alia advising that the Department of Justice would not enforce laws against torture, assault, maiming and the detention and interrogation of alleged enemy combatants. This has also emerged from evidence on the memorandums given by an expert in International Criminal Law on 6th May 2008, before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House of Representatives Judiciary Committee, among other sources.

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The Impeachment Resolution dated 10th June 2008, submitted by Congressman Denis Kucinich to the US Congress against President George W. Bush, containing 35 articles of impeachment for high crimes and misdemeanours, which was aborted, similarly highlights the role of the lawyers in the Department of Justice, more specifically the Office of Legal Counsel, whose opinion in accordance with rules which regulate the executive branch, is as binding on officials of the government as rulings of the US Supreme Court. The Impeachment resolution stated, that the Office of Legal Counsel of the Department of Justice gave secret legal opinions, among them on the President’s prerogative to break or suspend U.S. treaty obligations, at the request/direction of the senior most Executive officials. The Memorandum dated 1st August 2002 and Memorandum dated 14th March 2003, were among others referred to in the Impeachment Resolution, signed by former Deputy Attorney General John Yoo and by Jay Bybee (now a Federal Judge). John Yoo specifically wrote that the President of the United States as Commander in Chief was not bound by the Geneva Conventions on the treatment of the civilian population and prisoners of war and others and admitted that coercive interrogation polices were part of a common unifying approach to the war on terrorism. An expert clarified on 6th May 2008, before the Sub-Committee on the Constitution, Civil Rights and Civil Liberties of the House of Representatives Judiciary Committee, that the

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reservations, declarations, and understanding, dated 27th October 1990 by the United States to the 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, interalia relating to the interpretation of ‘intent’ with reference to the crime of torture, namely that the “act must be specifically intended to inflict severe physical or mental pain or suffering”, despite its acceptance by other states who are signatories to the treaty, poses no difficulty of interpretation for prosecution for war crimes, as the word intention has been defined by penal statutes or interpreted in judgments of various courts even within the United States of America. 12.

The aforesaid facts have been reproduced in this advisory opinion, without any attempt to give a finding on these facts on merits which will be determined in trials before the Tribunal, as it these facts among others, which are the backdrop, directly related to the query of the Kuala Lumpur War Crimes Commission, which is answered as under.

13.

Jurisprudence, the science and philosophy of law, grants a higher status to formal written agreements, voluntarily concluded between states not flawed by incapacity, fraud, misrepresentation, deception, coercion, undue influence or the corruption of representatives signing and ratifying the treaty, than even contracts between individuals, enforced by every legal system as evidence of mutual obligations accepted by the parties. As between multilateral treaties/conventions and bilateral agreements between States, multilateral treaties are of greater importance, as multilateral treaties/conventions when ratified or are acceeded to not only confer obligations on a wider group of beneficiaries, but in themselves may reflect existing and well established principles of International law which have been codified in the form of Conventions of which the Hague Conventions of 1899 and 1907, the earlier Geneva Conventions amplified and extended by the four Geneva Conventions of 1949, the 1977 Additional Protocols I and II to the Geneva Convention, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1984 Convention against Torture or Other Cruel Inhuman or Degrading Treatment or Punishment and the Nuremberg

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Charter among others, are examples. These Conventions are referred to as ‘jus cogens’, peremptory norms or rules of general international law accepted by the international community, from which no derogation is permitted.

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It is not the legal fraternity alone which accepts the necessity for the observance of treaties. “Philosophers, theologians and jurists have recognized with unanimity that unless the pledged word of a State could be relied upon, the relations of the entire international community would be imperiled and law itself would disappear.” (Charles W.Fenwick, International Law, 1967 edition).

15.

It is now indisputable that a treaty/convention once ratified or the procedure for accession to the treaty being complete, with the necessary procedure required to validate the treaty and render it enforceable being fulfilled in accordance with that treaty/convention and in the case of a reservation, declaration and understanding being filed on the date of ratification or accession as the case may be, by a government qualifying or interpreting and limiting the application of a provision to the treaty, provided such a reservation is accepted by other states who are signatories to the treaty/ convention and the reservation is not at conflict with the treaty/convention, the treaty/convention is binding on the head of State/government and all officials civil and military of that State, howsoever high they may be and in respect of the laws of war, even on private companies and security agencies and contractors and their agents hired by the State, unless the treaty is abrogated, revoked / denounced, strictly in accordance with the procedure prescribed or permitted by that treaty in terms of the period of notice required to be given and the specific conditions required to be fulfilled, after which the abrogation, revocation / denunciation is to be effective. However, in respect of a treaty/convention, reflecting customary and general principles of law recognized and accepted by the International community of states or embodying principles of what are known as ‘jus cogens’, which are peremptory norms of general international law accepted by the international community, the obligations reflected in the treaty/convention are binding on the head of state/government of that State and other States, even after

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the abrogation of the treaty/convention. This juristic principle that every treaty is binding upon the parties and must be honoured and implemented in good faith is reflected in the legal maxim ‘Pacta Sunt Servanda’, which constitutes the foundation of the law of treaties, a well established principle of International Law recognized by the International community, borrowed by European scholars from Roman Law. Historical and literary records establish that this doctrine has not evolved with the Roman Empire or after the emergence of modern European States and is of very ancient origin, observed over centuries by many civilizations, Buddhist, Hindu, Chinese, Islamic, Christian, African and by Native Americans of the continent of the Americas among other civilizations, long before it was adopted by the modern European States. 16.

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It is clear from the aforesaid, that even before the Vienna Convention on the Law of Treaties 1969 was adopted by the Vienna Conference on the Law of Treaties, that no head of state/government could unilaterally exempt itself from being bound by the provisions of a multilateral or bilateral treaty/ convention, once signed and ratified or on accession to the treaty on fulfillment of all procedural requirements as per the provisions of the treaty/convention. With the codification of the Law of Treaties by the Vienna Convention on the Law of Treaties, adopted in 1969 and which came into force in 1980, there is no room for ambiguity, as even though the Vienna Convention on the Law of Treaties does not apply with retrospective effect, the articles of the Vienna Convention on the Law of Treaties which embody already established customary principles of International Law accepted and recognized by the international community are enforceable, as reflected in Article 26 of the convention which codifies the legal doctrine, ‘Pacta Sunt Servenda’, that ‘every treaty in force is binding on the parties and must be performed by them in good faith.’ To reiterate, in the case of treaties/conventions which embody customary and peremptory general principles of International Law accepted and recognized by the International community,

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revocation / denunciation of the treaty/convention will not release the head of State/government or the State from obligations under the treaty/convention. In accordance with the decisions of the International Court of Justice cited earlier, namely the Corfu Channel Case (I.C.J. Reports 1949) and the Advisory Opinion of the International Court of Justice on the ‘Legality of the threat or use of Nuclear Weapons’, the Hague Conventions on the laws of war, the four Geneva Conventions 1949 and the 1977 Additional Protocols I and II to the Geneva Conventions are among other conventions, which codify customary, general and peremptory norms of International Law accepted and recognized by the International Community of States and have the status of ‘jus cogens’ from which no derogation is possible, such a treaty/convention will continue to be binding on the State even if abrogated/revoked. Article 43 of the Vienna Convention on the Law of Treaties codifies this principle of customary International Law as follows:

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Obligations imposed by international law independent of a treaty.

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The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it or the suspension of its operation, as a result of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.

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19.

It follows that no head of state/government can unilaterally exempt itself from complying with the treaty/convention, such as the Geneva Conventions, duly ratified by the State or on accession, with or without a reservation. Further even if the treaty/convention as in the case of the Hague Conventions on the laws of war and the Geneva Conventions of 1949 adopted before the Vienna Convention on the Law of Treaties 1969 came into force, embodies the customary and general principles of International Law universally accepted and recognized by the international community or accepted as ‘jus cogens’, that is a peremptory norm or principle of general International Law from which no derogation is permissible,


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referred to in Article 53 of the Vienna Convention on the Law of Treaties, the obligations under the treaty/convention are binding even on an abrogation, revocation/denunciation of the treaty/convention. 20.

That the United Nations is a solemn treaty is unfortunately not reflected in the conduct of the heads of states/governments and their chanceries. The Preamble to the U.N.Charter emphasises the necessity to establish “…conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained …”. Under the provisions of Chapter XVI, article 102,‘every treaty entered into by a member state of the United Nations after the present charter comes into force shall soon as possible be registered with the Secretariat and published by it.” Article 103 clarifies that, the obligations of the members of the U.N. under the Charter, in the eventuality of any conflict, ‘prevail over obligations under any other international agreements’. Even though Article 2 (4) of the U.N.Charter mandates that all members of the United Nations shall refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

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the threats earlier held out to the government of Iraq and the present threats to the government of Iran, by some of the permanent members of the Security Council, mandated to protect international peace and security and adhere to treaty obligations, reflects on the rapid moral descent, with catastrophic consequences, even for those societies whose leaders choose to act with impunity, threatening and waging war against other states. A logical conclusion which arises on a careful consideration of the multilateral nature of many treaties / conventions including the Hague Conventions on the laws of war, the Geneva Conventions applicable to armed conflicts including the Additional Protocols I and II, the Convention on the Prevention and Punishment of the Crime of Genocide, the

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Nuremberg Charter among other conventions, which are multilateral treaties enjoying a broad accession and which embody peremptory customary norms and principles of International law recognized and accepted by the community of nations, is that every State which has ratified these conventions or acceded to the conventions which constitute International Humanitarian Law, has jurisdiction to enforce the rights and obligations under the treaty/convention within its national jurisdiction and to penalise its breach, as the rights and obligations under these treaties/conventions extend to the international community as a whole.

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22.

Judge Mohamed Shahbuddeen (Guyana) in his separate dissenting opinion, ‘On the legality of the threat or use of nuclear weapons’ (I.C.J. 1996) while supporting the Court on some issues, which were decided unanimously, aptly quoted the eminent Arab philosopher, jurist and historian Ibn Khaldun‘s observations from ‘The Muqaddimah, an Introduction to History’ and his explanation for the evolution of laws, in perceptive, analytical and philosophical words, of universal relevance - “…laws have their reason in the purposes they are to serve …jurists mention that injustice invites the destruction of civilization with the necessary consequence that the species will be destroyed …laws are based on the effort to preserve civilization”.

Logically therefore, the interpretation of law is required to conform to the necessity of protecting humanity and human values, without which civilization is not possible.

23.

In a short separate dissenting opinion in the same proceedings, Judge Shi Jiuyong of China, supporting the unanimous Opinion of the International Court of Justice on some of the issues, including that International Humanitarian Law prohibited the use of certain weapons, expressed reservation on the Court confusing policy with law, emphasising that policy should be regulated by law, and not vice versa, stressing the democratic principle in international relations in the following words:

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…the court, as the principal judicial organ of the United Nations cannot view this ‘appreciable section of the international community’ …in terms of material power … the structure of the international community is built on the basis of sovereign equality. Therefore, any undue emphasis on this “appreciable section” would not only be contrary to the principle of sovereign equality of states, but also make it more difficult to give an accurate and proper view …

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To conclude, the interpretation of treaty obligations cannot be usurped by a head of state/government or of a powerful club of nations, as the higher objective of the implementation of rights and obligations under a treaty/convention is the protection of humanity, the advance of civilization and harmonious co-operation between governments and peoples. In this context, it is necessary to state, that Treaties/ conventions cannot be misused as a pretext for unjust sanctions, with a view to impose severe economic hardship on civilian populations, tantamount in impact to a declaration of war, in violation of the United Nations Charter, in an attempt to weaken a country in preparation for an armed assault, while ignoring the huge stockpiles of prohibited weapons, including nuclear weapons in the armoury of nuclear weapon states and the lethal nuclear arsenals of close alliance partners. The President of the United States declared in 2007, that “micro nukes” of less than 20 kilotons, three times as powerful as the Hiroshima and Nagasaki bombs were to be classified in the arsenal of the United States of America as ‘conventional ordnance’. Such acts by a head of state/ government and the indiscriminate increase of stockpiles of nuclear weapons by the powerful club of nuclear weapon states can hardly be considered in conformity with the 1968 Treaty on the Non-Proliferation of Nuclear Weapons and other treaty obligations. Similarly voting against a resolution to declare a specific region as a “Nuclear Weapons free Zone”, is hardly in conformity with the Treaty on the Non-Proliferation of Nuclear Weapons. One cannot at one and the same time, support the enforcement of and simultaneously violate or derogate from the provisions of obligations under the same treaty/convention.

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25.

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The successive wars which have been waged in this the first decade of the 21st Century, have lasted for a period more than the first world war, termed a ‘Banker’s War’ in view of the nature of spoils and financial reparations awarded to the victors by the Treaty of Versailles and for a longer duration than World War II which followed close on the heels of the ‘Great Depression’, when belligerent nations on both sides (with exceptions) attempted to restructure, re-divide, depopulate and control states to seize resources, a primitive and barbaric method of capital accumulation imposing death and mutilation on millions. The question whether the nature of organization of the financial and political system of certain states, predisposes them to wars of aggression and occupation for the seizure of resources in successive wars to open up economies, as in the’ Opium War’ to force opium on to China by the East India Company, among other colonial wars imposed, to force open markets or for seizure of resources, with consequent inability/refusal of such States to respect international treaties/conventions, remains unanswered in juridical terms, despite the reference to the organization of the Nazi party and its source of funding at the Nuremberg trials, which were progressively diluted. In 1922 the office of Naval Intelligence on “US Navy as an industrial Asset”, detailed “services rendered by the navy in protecting American business interests and in seeking out commercial and investment opportunities”. These questions are erroneously viewed as political questions, even though conspiracies to wage wars of aggression and the intention and objectives of a crime are relevant in criminal law and in International Criminal Law. (Signed) Niloufer BHAGWAT


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Separate Opinion of Francis A. Boyle

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SEPARATE OPINION OF FRANCIS A. BOYLE

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Head of State or Government cannot immunize himself from commission of international crimes.

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Under the Nuremberg Charter, Judgment and Principles, a Head of State or Government cannot immunize himself from the commission of international crimes. (Signed) Francis A. Boyle


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SEPARATE OPINION OF SALLEH BUANG

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Jurisdiction of the Tribunal to give the advisory opinion requested. Article 7 paragraph 1(a)-(d) of the Charter - Power of Kuala Lumpur War Crimes Commission to request advisory opinions.

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Tribunal having jurisdiction to give advisory opinion requested. An Application for An Advisory Opinion of this Tribunal was filed by the Kuala Lumpur War Crimes Commission with the Registrar of the Tribunal on October 8, 2008. The question posed by the Commission reads as follows: Whether a Head of State and/or Government can unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) duly ratified by the State without first abrogating the relevant treaty/convention.

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I shall deal with the Commission’s question in two parts (a) whether this Tribunal has jurisdiction to entertain this application; and (b) (assuming the Tribunal does have jurisdiction to give its Advisory Opinion), whether a Head of State or Government can exempt itself from its treaty obligations without first derogating from the treaty. I.

Whether this Tribunal has Jurisdiction

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On the issue of jurisdiction, I will also approach it in two parts. First, whether under the terms of its enabling Charter, the Tribunal can legally hear this Application for Advisory Opinion. Secondly, if the answer to that is in the affirmative, whether there is any compelling reason for the Tribunal to decline the jurisdiction; in short, not to hear the application.

2.

As had already been said more eloquently by the other Judges, this Tribunal’s jurisdiction is spelt out expressly

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in Part I Article 7 of the Charter of the Kuala Lumpur War Crimes Commission. Under Article 7, Clause (1) states that the Tribunal’s jurisdiction is limited to the following crimes only (a) crimes against peace, (b) crimes against humanity, (c) crimes of genocide, and (d) war crimes.

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Next, under the following Clause 2(a) of the same Article, it is stated that (and I quote verbatim)

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The Tribunal may, in its absolute discretion, give an advisory opinion on any question of International Law of substantial public importance at the request of the War Crimes Commission, the Legal Team, the parties before the Tribunal or any one or more of the amici curiae appointed by the Tribunal in any particular case. 4.

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At first glance, this application for an Advisory Opinion seems to be within the jurisdiction of the Tribunal because the application was made by a proper party, i.e. the Commission, and the issue raised is clearly a question of International law of substantial public importance. There is definitely a “substantial” question of public international law about a Head of State wanting to extricate himself from its international obligations or criminal culpability, especially if it concerns any of the crimes mentioned in Clause (1) above.

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Whilst the above 8 words of a general nature are then followed by the words “such as the Geneva Conventions” within brackets, I am not convinced (without the benefit of further arguments and submissions by the Applicant) that the generality and extreme width of this Application has been sufficiently

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narrowed down to make this Application to fall within the jurisdiction of this Tribunal.

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The conduct of Head of State or Government in unilaterally exempting itself from treaty obligations can include many things, not necessarily concerning any of the 4 crimes mentioned in Clause (1) of Article 7. Thus, for example, if a state has treaty obligations to pay reparations to a neighbouring state under certain circumstances, the conduct of its Head of State or Government in refusing to make such reparations (through unilateral declaration or municipal legislation that he is exempted from doing so) can very well amount to a breach of its international obligations towards the neighbouring state, but it is certainly not within the meaning of Clause (1) of Article 7.

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I now turn to the question whether there is any compelling reason for the Tribunal to decline jurisdiction. In this regard, I am borrowing the words of ICJ President Bedjaoui when he delivered the Advisory Opinion of the ICJ as sought by the General Assembly of the United Nations in the case known as the “Legality of the Threat or Use of Nuclear Weapons�. Amongst the reasons this Tribunal can decline jurisdiction (here again I am following the precedents of ICJ) are -

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(a) (b) (c)

the question presented is vague and abstract; it gives no practical assistance to the requesting party; it is hypothetical in nature, i.e. there exists no specific dispute on the subject-matter of the question.

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Established authorities in ICJ reports show that the purpose of the advisory function is not to settle (at least directly) disputes between States, but to offer legal advice to the organs and institutions requesting the opinion.

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They also lay down the rule that although the question put to the ICJ seeking its advisory opinion did not relate to a specific dispute, or was couched in abstract terms, that alone has not been considered as compelling reason for the Court to decline to give its Advisory Opinion.


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Based on these authorities and the customary practice of the ICJ, it is my opinion that the Tribunal in this case has jurisdiction to hear the Application put forward by the Commission, subject to its scope being narrowed accordingly to fall within the scope of Clause (1) of Article 7 as I had already indicated above. I will now turn to the second question posed by the Commission.

B.

Whether a Head of State or Government can exempt itself from its treaty obligations without first derogating from the treaty?

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Assuming that this present Application for Advisory Opinion falls under the jurisdiction of the Tribunal, and that there is no compelling reason for the Tribunal not to exercise its jurisdiction, the substantive legal question is whether a Head of State or Head of Government can escape liability from existing and binding treaty / convention obligations without first abrogating them?

14. In Croatia v. Serbia (2008), the issue before the ICJ was whether Serbia can unilaterally exempt itself from the provisions of the Genocide Convention. The ICJ held that since Serbia had not filed a denunciation of the Genocide Convention, which is binding on it, it cannot unilaterally do so. 15.

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Without going into the complexities of the case, the principle of law laid down by the ICJ in Crotia v Serbia can be simply explained as follows. A state is bound by its treaty obligations unless it has filed a denunciation. It is bound by all the terms of the treaty or convention to which it has become a party, unless it had made reservations limiting its obligations at the time of signing or ratification. Whether a denunciation of, or withdrawal from, a treaty obligation is possible or not, the matter must be considered in the light of applicable rules of customary international law which are reflected in the Vienna Convention on the Law of Treaties, 1969. Generally speaking, a treaty is not subject to denunciation or withdrawal unless it is established that -

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the parties to such treaty or convention intended to admit the possibility of denunciation or withdrawal; or a right to do is expressed in, or implied from, the nature of the treaty or convention.

By way of example, under the Convention Against Torture which was ratified by the United States in October 1994, Article 31 Clause (1) states (and I quote) A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

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But under Clause (2) such denunciation does not in any have the effect of releasing the State from its obligations under this Convention “in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective”. In other words, whilst a denunciation may be properly made in accordance with the terms of the treaty or the nature of the convention, such denunciation will only affect the future but will not change the past. The denunciation may allow it to escape from its future obligations but does not in any way absolve it from its past obligations or protect it from any prior culpability.

19. Some treaties, especially human rights treaties, are special in nature, for they do not provide for withdrawal or denunciation, for example, the International Covenant on Civil and Political Rights 1966. [See “Key elements in a multilateral treaty”, paragraph 4.5 “Withdrawal and denunciation” at http:// untreaty.un.org/English/TreatyHandbook/chapter4.htm]. 20.

On the subject of treaty denunciation or abrogation, international humanitarian law prohibits a Head of State or Government from unilaterally exempting itself from complying with international treaty or convention obligations which are applicable to crimes against peace, crimes against humanity, crime of genocide, and war crimes, and which have been duly ratified by the State and had not been abrogated by it.


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In this regard we should remind ourselves that Principle III of the Nuremberg Principles had clearly stated (and I quote) The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law. In his article, “Human Rights Treaties and State Succession”, Prof Menno T. Kamingga of Maastricht University, Netherlands, referred to “the special status of human rights treaties in international law” in the following words Obligations under human rights treaties not only enjoy a superior ranking in comparison to other international standards but they are also permanent and inalienable. In other words, while states may come and go obligations under human rights treaties remain as they are.” [The Status of International Treaties on Human Rights, p. 31-41] In conclusion, it is my Opinion that (1)

(2)

This Application, as originally framed, is too wide in scope, vague and lack the necessary precision to make it fall within the jurisdiction of the Tribunal, and unless and until its scope has been narrowed down and particularised sufficiently to make it subject to the Tribunal’s jurisdiction, which is solely for the Applicant to decide, this Application must be refused. In the event that this Application has been modified accordingly and the Tribunal decides that it has jurisdiction to hear it and that there is no compelling reason for the Tribunal to decline its jurisdiction, it is my opinion that no Head of State or Government may unilaterally exempt himself from complying or escape liability from existing and binding treaty / convention obligations without first denouncing or abrogating them.

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It is also my opinion that in respect of international human rights, there is no right for the State, having become parties to such human rights conventions or treaties, to withdraw from them or denounce their obligations under them. (Signed) Salleh Buang

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By Application No. 1 of 2009, the Kuala Lumpur War Crimes Commission has sought a preliminary advisory opinion on the following issue: Whether a Head of State and/or Government can unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) duly ratified by the State without first abrogating the relevant treaty/convention?

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IT IS HEREBY ADVISED AS FOLLOWS: 1.

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International Agreements, whether denominated as Treaties, Conventions or Protocols bind all states that are parties to the Agreement. 1.1

Whether a nation is a signatory to a Treaty or not is a question of fact.

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Once it is proved that a nation is a signatory to a Treaty, the nation cannot, unilaterally, suspend the provisions of a binding Treaty or “disapply� it to the facts of a particular situation unless it has first abrogated the Treaty or Convention in accordance with the law.

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Therefore the answer to the question posed to the Tribunal is in the negative. No Head of State or Government can unilaterally exempt himself or itself from any International Treaty or Convention duly ratified by the State.


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2.

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It is further advised that International Law recognizes that a nation may abrogate a Treaty signed earlier. 2.1

Whether the abrogation did take place or not is a question of fact.

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Within the legal system of a nation, who has the authority to abrogate an International Treaty or Convention is a question of domestic law.

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Under what procedure may a nation abrogate a Treaty or Convention is a question of domestic law.

2.4

In the context of the United States, for example, Treaties are incorporated into the corpus juris of the land. The Constitution recognizes that Treaties are part of the supreme law. The US President has no authority, on his own, to abrogate the law of his country. However, under Article 1 of the US Constitution, the US Congress has the power to enact legislation superseding a Treaty obligation. Because the matters embodied in the Geneva Conventions address matters within the scope of the Congress’ Article 1 powers, the President lacks the constitutional power, without congressional authorization, to violate these Treaties. Whether the US Congress has formally superseded or abrogated the country’s obligations under the Geneva Conventions is a matter the veracity of which needs to be proved.

Finally, it is advised that there are two principal sources of the law of armed conflict. First, customs as reflected in the practice of nations, and second, international agreements whether denominated as Treaties, Conventions or Protocols. Notwithstanding the absence of a specific Treaty obligation, all nations of the world are bound by a higher customary international law that relates to the conduct of war and the treatment of prisoners. This customary international law cannot ever be abrogated. On this reasoning too, the answer to the question posed to the Tribunal is in the negative. (Signed) Shad Saleem Faruqi

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SEPARATE OPINION OF TUNKU SOFIAH JEWA

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Scope of Advisory Opinion. 5

Jurisdiction of the Tribunal to give the advisory opinion requested, whether abstract or otherwise. Article 7 paragraph (1)(a)-(d) of the Charter.

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Tribunal having jurisdiction to give advisory opinion requested.

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Head of State or Government can exempt itself from liability from complying with an existing and binding treaty or convention but only after abrogation of the same. Even so, treaties involving international humanitarian law are not capable of denunciation or abrogation.

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The Kuala Lumpur War Crimes Tribunal (“the Tribunal”) is seised with a request from the Kuala Lumpur War Crimes Commission (“the Commission”) for an Advisory Opinion filed with the Registrar of the Tribunal on the 8th day of October, 2009 and which reads as follows: Whether a Head of State and/or Government can unilaterally exempt itself from complying with any provisions of any International Treaties/Conventions (such as the Geneva Conventions) duly ratified by the State without first abrogating the relevant treaty/convention.

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A.

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1. An advisory opinion is essentially an opinion issued by a court of competent jurisdiction that does not have the effect of resolving a specific legal case, but merely advises on the constitutionality or interpretation of a law.

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Question of Jurisdiction

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The first question that needs to be addressed is whether the Tribunal has jurisdiction to adjudicate on the matter now before it.


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3.

4.

The Charter of the Kuala Lumpur War Crimes Commission (“the Charter”) under its Article 7 paragraph 2 clause (a) provides that:

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The Tribunal may, in its absolute discretion give an advisory opinion on any question of International Law of substantial public importance at the request of the War Crimes Commission, the Legal Team, the parties before the Tribunal or any one or more of the amici curiae appointed by the Tribunal in any particular case.

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Thus, before deciding whether or not to give the opinion sought, the following three basic requirements must be complied with, namely: (i)

The Applicant must be a qualified entity or person under Article 7; (ii) The Question sought must pertain to International Law; (iii) The International Law must be one of substantial public importance”. 5.

The Commission is clearly one of those envisaged as a proper applicant under Article 7 and there is therefore no issue as to the fulfillment of the above first requirement.

6.

The crux of the Applicant’s question relates to treaties, which under Article 2 paragraph 1(a) of the Vienna Convention on the Law of Treaties defines a treaty as, inter alia, “an international agreement concluded between States in written form and governed by international law”. The second requirement that the question posed for consideration by the Applicant must pertain to international law is likewise fulfilled.

7.

Having complied with the international law requirement of the Application, there remains a final element that needs to be satisfied before the Tribunal can assume jurisdiction on the Commission’s application and that is the international law in question must be one of substantial public importance.

8.

One of the basic international law principles particularly relative to the law of treaties is found in a Latin legal maxim

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known as pacta sunt servanda, the literal English translation of which is “contracts are to be kept” or “promises must be honoured”.

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McNair, in his Law of Treaties (1961) at page 493 states that in every uncodified legal system, there are certain elementary and universally agreed principles for which it is almost impossible to find specific authority. Whether it is in the common law of England or the United States, no specific authority can be found regarding the principle that a person must perform his contracts. Yet almost every decision on contract presupposes the existence of that principle.

10.

The same is true of international law. No Government would decline to accept the principle pacta sunt servanda, that is, the principle that States are bound to carry out in good faith the obligations they have assumed by treaty. The very fact that States find it necessary to spend so much effort in explaining in a particular case that the pactum has ceased to exist, or that the act complained of is not a breach of it, either by reason of an implied term or for some other reason, is the best acknowledgment of that principle. A long series of intergovernmental discussions of this nature can be invoked to show that there is a general presumption against the existence of any right of unilateral termination of a treaty.

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It follows, therefore, that any attempt to transgress this timehonoured principle, as implied in the question posed to the Tribunal is, to my mind, one of substantial public importance which the Tribunal ought not to refuse to consider.

C.

Discretionary Character of Article 7

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Article 7, paragraph 2(a) of the Charter, in similar vein as that of Article 65, paragraph 1 of the Statute of the International Court of Justice is discretionary in character.

13.

Although I am satisfied of the Tribunal’s competence to entertain the Commission’s request, it remains to be considered whether, in the circumstances of this case, the Tribunal should express this competence, or on the contrary,

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decline to do so, whether on the grounds already referred to or for any other pertinent reason. 14.

In my view, the following issues are pertinent for the Tribunal’s consideration: Can the Tribunal deal with an application for Advisory Opinion without any supporting documents attached to it? (ii) As neither the head of state nor the state involved is identified in the application, can the question posed therein be regarded as hypothetical or abstract and outside the domain of this Tribunal? (iii) Since an Advisory Opinion does not have the effect of resolving a specific legal case, would the Commission’s application result in an exercise in futility?

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(i)

D.

Whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character. Article 65 paragraph (2) of the Statute of the ICJ provides that: Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question. 17.

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Lack of Supporting Documents

15. In Western Sahara Advisory Opinion, (I. C.J. Reports 1975, pp. 28-29, para. 46), one of the preliminary issues considered by the World Court in determining whether or not to exercise its discretion in acting on an advisory opinion request was:

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relevant documents, and failure to do so, would invariably result in a futile effort on the part of the applicant.

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18.

Whilst an almost similar provision appears under Article 7 Paragraph (b) of the Charter, the requirement that the application be accompanied by all documents likely to throw light upon the question, is qualified with the words “where necessary”.

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Thus, to assert that the Commission’s request for advisory opinion must be disregarded on the ground that it was not accompanied by all documents likely to throw light upon the question sought is unwarranted, given the fact that the requirement to do so under the Charter is not mandatory.

E.

Is the question posed hypothetical or abstract?

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It is axiomatic that no tribunal properly constituted would waste its time and energy on matters purely hypothetical. Such matters fall within the domain of moot courts in law schools and colleges.

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Granted that the Application of the Commission, as worded, makes no reference to any named Head of State or Government, would the impugned question be regarded as abstract and outside the realm of consideration by this Tribunal?

22.

The jurisdiction of the ICJ to give Advisory Opinions is found in both the UN Charter as well as the Statute of the ICJ.

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Under Article 96 paragraph (a) of the United Nations Charter, it is provided that:

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The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

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Under Article 65 paragraph 1 of the Statute of the ICJ, it is provided that:


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The court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the United Nations to make such a request. 25.

In the case of Conditions of Admission of a State to Membership in the United Nations ICJ Reports 1948, p.57, an application was made to the ICJ by the United Nations General Assembly for an Advisory Opinion on the following question: Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?

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26.

No country was in fact named in the request for the aforesaid Advisory Opinion and during the hearing of the application, it was argued that the Court should not deal with a question couched in abstract terms.

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In dismissing this particular argument, the Court responded as follows:

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[I] has [...] been contended that the Court should not deal with a question couched in abstract terms. That is a mere affirmation devoid of any justification. According to Article 96 of the Charter and Article 65 of the Statute, the Court may give an advisory opinion on any legal question, abstract or otherwise. 28.

I find nothing hypothetical in the question put by the Commission in their Application but if one were to regard the

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question as “abstract”, the above decision of the ICJ has made it crystal clear that there is nothing improper for this Tribunal to consider abstract legal matters.

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Is the Application a futile exercise?

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This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court’s authoritative views on important issues of international law and in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases…

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Exercise of Discretion

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In exercising this discretion, this Tribunal should be guided by the practice of the ICJ in that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character be it in contentious cases or when dealing with applications for advisory opinions.

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In the light of the considerations set out in paragraphs 15-30 above, I find no compelling reason, in the circumstances of the present case, to refuse to comply with the request by the Commission for an advisory opinion.

H.

Opinion

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Having established that the Tribunal is seised of a request for advisory opinion which it is competent to entertain and that it should comply with that request, the Tribunal should now examine the question which has been referred to it by the Commission.

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33.

The request by the Commission for Advisory Opinion, although presented as one single question, may be approached in many ways, but for my part, I shall do so on two different planes: (i) (ii)

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Whether a Head of State or Head of Government can escape liability from existing and binding treaty/convention obligations without first abrogating them? Whether treaties involving international humanitarian laws may be abrogated?

As regards the first question, the general rule under international law is that if a treaty contains an express denunciation clause, it may terminate it in accordance with its terms. A Head of State or Government can therefore escape liability from existing and binding treaty/convention obligations only after first abrogating them, but not before that. As regards the second question, the rule is that treaties involving international humanitarian law are not capable of denunciation or abrogation. Whilst a Head of State or Government may effectively do so under its own municipal law (which is for the state’s own judiciary to determine), there are considerable authorities and precedents in the realm of public international law to show that no Head of State or Government may unilaterally grant himself immunity or escape liability from its international obligations in respect of international humanitarian law. Such a unilateral conduct of denunciation of international humanitarian obligations is in itself a breach of its international obligations. FOR THESE REASONS, I would answer the Commission’s question in the negative. (Signed) Tunku Sofiah Jewa

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APPENDIX A

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Kuala Lumpur War Crimes Commission - Notes of Proceedings

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KUALA LUMPUR WAR CRIMES COMMISSION

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NOTES OF PROCEEDINGS 30 OCTOBER 2009

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Tun Dr Ismail Hall, Level 2 Putra World Trade Centre Kuala Lumpur 10

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COMMISSIONERS : 1. 2. 3. 4. 5. 6. 7. 8.

Mr Zainur Zakaria (Chairman) Prof Dr Mohd. Akram Shair Mohamed Mr Musa Ismail Prof Hans-Christof von Sponeck Mr Dennis J. Halliday Dr Zulaiha Ismail Prof Gurdial Nijar Prof Michel Chossudovsky

COUNSEL FOR WAR VICTIMS 25

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Mr Matthias Chang Ms Usha Kulasegaran Mr Avtaran Singh Encik Megat Suffian Merican

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WAR VICTIMS :

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1. 2. 3. 4. 5. 6. 7.

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REGISTRAR :

Moazzam Begg Rhuhel Ahmed Sami El-Haj Jameelah Abbas Hameedi Salam Fanar Zabin Dr Souad Naji Al-Azzawi Abbas Zaid Obaid

Mr Alexzander Johnson


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Zainur Zakaria: Good morning Ladies and Gentlemen. Today is the sitting of the War Crimes Commission to hear and receive testimonies and evidence from victims who claimed to have been tortured while they were in custody pursuant to the invasion of Iraq and the war in Afghanistan. We have today with us 7 witnesses, one of whom is an expert witness who will be testifying on the use of depleted uranium by the coalition forces in Iraq and Afghanistan and the prosecution team will be introducing the witnesses one by one and the Members of the Commission should they need any clarification from the witnesses will be at liberty to ask the witnesses for such clarifications. Now, without further ado I invite the prosecution team to begin by introducing these witnesses for us to hear and receive their testimonies. Matthias Chang: Mr Chairman of the Commission, Members of the Commission, Matthias Chang together with my Learned Counsel Avtaran Singh, Megat Sufian and Usha Kulasegaran. We represent the Victims Unit Team for the purpose of today’s testimony before the Commission. But before we introduce the witnesses, may I with your indulgence Mr Chairman, make the introductory remarks concerning the role of the Commissions and why we are here today. Prior to this Commission’s hearing, in the last 2 days we had a very successful Conference on the initiative to criminalise war. But in the backs of the mind of a lot of people, when they exercised their minds over the last 2 days: Why war? What are the causes of war? And how such cruel conduct be perpetrated by the aggressors in war. Now I think it is very important that before we bring the witnesses to testify on how they were tortured, how they have been dehumanized, I think it is very important, both for the public to understand your role as a Commission and our role as Legal Team, and the underlying principles how war has been justified. I have no wish to give a thesis on this issue but I think I will try my best to summarize a few key principles because if we don’t understand the ideological basis or the

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philosophical basis for war, we will never be able to implement our initiative to criminalise war. And the foundation for western philosophy for war was best enunciated by the master of war - Carl von Clauswitz who, in his landmark thesis on war, said that “War is a continuation of politics by other means”. May I ask you all to consider for awhile, and pause and read those words on the screen “War is a continuation of politics by other means”. It’s a mind boggling concept, a concept accepted for centuries. It means that if we, the people or the leaders for government having failed to indulge in politics be it at Parliament or international negotiations and failed to achieve whatever objectives they cannot achieve by peaceful means, then they will resort to war as alternative to politics - This is the underlying philosophy. He went on to say that war is a mass duel - you would recall in olden days, for honour, between 2 men; if you insult someone, they would challenge you to a a duel, and then you go out to the field, take a sword, or a pistol, and challenge each other. The victor becomes the honorable person. He may not be the honorable person but because he won the war, or that duel, he is deemed the honourable gentleman. Likewise in war, based of the philosophy enunciated by Carl von Clauswitz and subsequently his disciples, in order to ensure that you are the honorable party in a war, you must ensure total war - that means total imposition of the will of the victor on the vanquished. And the means to impose total oppression, total submission of victor’s will on the vanquished is by mass slaughter, and by torture, by a systematic method of oppression so that will of the oppressed people will be subjugated and the people will surrender to the will of the victor - and that is a very important principle to understand - that’s why war is so brutal, oppression is so brutal. And torture is one of the principle instruments of that oppression - of a method to impose one’s political will against the vanquished. And over the years, many people, especially


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intellectuals, in universities, in think-tanks, has justified war on the following grounds, if I may summarise:First, war is a necessary instrument of policy because even if civilised countries were to denounce wars, there will always be rogue States and demented leaders who will resort to war. Can I just pause here for awhile, because yesterday one of the speakers said that, “Majority of the people who wage war of aggression may be mad-men”. That is a very dangerous assertion. Although I know what he meant - that to wage war of aggression is madness; but we must not attribute madness to the leaders who wage war. Why? Because if we ascribe madness to the leaders who wage war, then they have the right to invoke the defence of insanity, and God-forbid that you can invoke the defence of insanity for waging war. Let me assure you that everyone who wage war are sane people. They are very sane because they uphold the philosophy and the ideology of Clauswitz in his famous thesis on war. Secondly, which says: There are situations whereby wars need to be conducted with exceptional brutality so as to ensure decisive outcome. And I repeat: There are situations whereby wars need to be conducted, and the key words are, with exceptional brutality so as to ensure decisive outcome. And that principle is grounded on the first principle - the total subjugation, the total imposition of one’s will on the other. Hence extreme brutality as a justification of war. That is why so often, when war starts, when peace-loving people interverne to call for cessation of hostilities, they say, “No! There must be a decisive victor so that there’ll be a peace imposed on the subjugated, or the vanquished, otherwise it will be a half-peace”.

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Thirdly, wars which are concluded prematurely, even on humanitarian grounds, will give rise to future conflicts - hence, the … question: Does war preceeds peace, or peace preceeds war?

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Fourthly, some experts even go as far as to say wars are the products of problems during peace-time. How incredible a

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statement. As war is an act of policy, it is politics by other means - violent and brutal means. If politics is power, so is war. (Claus)witz principle: The humanitarian argument for speedy cessation of hostilities when war has commenced is misguided because war still persist to solve a problem which all other policy options have failed. Next, therefore peace preceeds war and periods of peace are merely interlude inter war periods for re-arming, re-fitting and re-toolsing of the military The notion that war does not solve anything applies equally to … nor does peace. A good war, one which has been waged and won decisively will shape and ensure the quality of peace. War and peace is highly contextual as different societies have different values and perspective. The key determinants are religion and culture. And war is necessary to resolve security problems. Lastly, if wars are not controlled, it should not be so restrictive so as to defeat the real purpose of having to wage war - pause again at this last principle advocated by the war-mongers. If wars are to be controlled, it should not be so restrictive so as to defeat the real purpose of having to wage war. So we have to understand when war is waged, what is the political objective. So if we know for a fact that war is waged for economic plunder, obviously the aggressive nation will not stop hostilities until they have achieved the complete subjugation of the nation so as to be able to exploit the wealth of that nation: be it oil, copper, what have you. Now, some of us who are in universities who have studied political science or mass media may come across this incredible so-called expert intellectual praised throughout the corridors of power and his name is Edward Luttwak, and he wrote a thesis called “Give War A Chance”. Incredible title to a thesis for which he awarded a PhD, phony donkeys. And he says this, “An unpleasant truth often overlooked is that although war is a great evil, it does have great value. It can resolve political conflicts and lead to peace. This can happen when all belligerence become exhausted and one wins decisively. Either way, the key is that fighting war must continue until resolution is reached. War brings peace only after passing a culminating phase of violence. And


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since establishment of the United Nations and … power politics in the Security Council, however, wars amongst lesser powers have rarely been allowed to run their course. Instead they have typically been interrupted early on before they could burn … out and establish the pre-conditions for lasting settlement”. Members of the Commission, Mr. Chairman, and members of the public. Can anyone of you here today consider those 15 principles as enunciated by Carl von Clauswitz as that of a mad-man? Or it a reasoning of an evil mind? Evil doesn’t equate with madness, let me tell you that. An evil devious mind represents those vested interests that needs war for economic purposes, for politics by other means. And throughout history, it’s very sad that the people in the forefront who could uphold law, who could defend law, are the first people to surrender, to sell their soul to these warmongers, to these war criminals. And I refer to non other than my sad profession, the lawyers. When I was in practice in the corridors of the Courts, my clients enthrall and awe, lawyers wearing their dark suits, striking, you know, up and down, on their ego trip; and I always tell them, actually the lawyers are glorified clerks in penguin suits. I have such cynicism and such anger towards the legal profession because throughout history, it’s we the lawyers and the judges who have betrayed the people, who have betrayed the trust which the people have imposed on us to fight for justice, to fight for peace, and to fight for justice. I will create a lot of enemies by saying this, in Bar Council, in other … throughout the world - but I challenge them, to prove me wrong because how can we have apartheid in South Africa for so long if lawyers would stand up, stand up to the plate, represent all the victims of the black Africans who were exploited and oppressed by the white apartheid regime -Take their case in Court, go to the United Nations. They did not. Because why? In Malay, “jaga perut, cari makan,” means “my bread comes first; my comfort, my welfare”. How about the judges? They sit in high walls and benches and impressive buildings and they pontificate, but when it comes to these

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issues, they have surrendered. They have surrendered, that’s why apartheid lasted so long. Likewise, in 2nd World War, in Nazi Germany, was there not lawyers and judges who failed to stand up to oppression, to racist laws? Likewise, in mother England, how did the colonial policies of oppression, that lasted for so many hundreds of years, so long that they pride themselves that our empire is so large that the sun would never set. Those were lawyers who promulgate laws and legal reasoning to justify colonial occupation and policy; the lawyers. And the judges, who were complicit in ensuring those laws upheld, and implemented. Likewise, in America we have seen, this is not the first time this brutality has occurred in the world. It was in Vietnam, the horrors of Vietnam war, the horrors of the wars in El Salvador, Nicaragua, Guatamala. And the height of arrogance of the United States of America was when they unleashed a brutal war against a small little country called Nicaragua and when Nicaragua then, so-called under the government of the leftist-communist regime, though alleged, took the incredible step of going to the ICJ for an advisory opinion whether that war unleashed by America was legal. Was it a war crime? You know what America did? America went to ICJ says, “We are withdrawing our consent to the universal jurisdiction of the ICJ”. Meaning, when it suits them, they go to Court, because why, the judges are all fixed. They know them be it the ICJ or the US Supreme Court. When then bench is a little against them, “Aha, we will exercise our sovereign right to withdraw from treaties. To hell with you”. And when the ICJ on that day stood up and says, “The US has commit a war crime, has breached international treaty, and must pay compensation to this small little nation of Nicaragua,” you know what they say, Uncle Sam, “To hell with it. We will not pay any compensation. We will not recognise that judgment”. Yet time after time, these war-mongers, these State leaders of the developed world say, “We must uphold international law. We fight for freedom. We fight for peace”.


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So I like to say to you, members of the public who have asked us, the legal team, and I believe have asked also members of the Commission, “Why you bother? Who gave you the power? Who gave you the jurisdiction? Can you enforce your judgment? You are wasting your time. You are loyar-burok (half-past six lawyers). Maybe you’re here for an ego-trip, and what have you”. Let me assure you it’s because so many of the members of the legal profession has failed to discharge their responsibility, that is, very pleasing, and I hope, inspiring, that in a small country of Malaysia, supported by few foreign friends, have agreed to take the 1st step, and I say a courageous step, to show to the world that we will not be the mainstream in the complicit actions, in the conspiracy to support the big powers. Though small, we will stand up and light the first candle for peace because what has happened, more so after the war in Afghanistan and the war in Iraq is that the entire international judicial system has collapsed. And I would like to cite, if I may, Mr. Chairman, a report written way back in 1929; a report upon the illegal practices of the United States Department of Justice - why this report is cited today, this morning is because, as some of you may know, when Bush launched the “War of (sic) Terror”, he said, “Torture is ok”. And he got all the big lawyers. The most brilliant lawyers are in the Department of Justice in the USA, headed by the Attorney-General, and they wrote memos saying, “Bush, you can do this. Bush, you can do that. You can torture, you can detain, you can deprive any human being of the most basic elements of dignity and respect. Why? We lawyers say so”. So when the Attorney-General in the person of Ashcroft, or Albert Gonzales assisted by … who is now a judge of the Supreme Court of America, as a reward, or John Yoo; people wonder, “He must be right”. Cause the lawyers said so. They can’t be mad. They … the brains to analyze. So when they justify torture, it must be right. And just before we came today, I had a discussion with my learned counsels here; and I posed a simple question, which is

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always posed in any debate against those people who advocate torture. And the usual argument for torture is this: What is today, I receive a call now, and says, “The bomb will go off in 3 minutes”.. There’s a bomb in this building, will blow up in 3 minutes. I’m saying this: I’m the terrorist. You’ll be wondering, “Where is the bomb,” and I say, “I don’t care. I’m not telling you”. Do you torture me, so that you can save all of us here? So that we can vacate the building in time? Most people would act, “Of course must torture. He’s the bomber, he’s the terrorist”. Because the ticking time-bomb test for torture must be applied. The end justify the means- or does it? If we subscribe to that doctrine, the end justify the means, and use the ticking time-bomb analogy, may I counter with these other precepts which are relevant to lawyers: It’s better to let the guilty go free than to convict an innocent. Justice must not only be done, it must be seen to be done. And I can assure you, in the course of the testimony of witnesses, the time-bomb analogy for justification of torture is fallacious, is grounded on everything against humanity- becase if you can justify torture in one circumstance, you can justify war and torture in any circumstances. So we have to be very careful not to be emotional or irrational when facing an issue as emotional, as emotive as torture and war. I will come back now to the famous passage … Zainur Zakaria: Er, Matthias, can you wind up Matthias Chang: We will. I think, Mr. Chairman. I think the public would like me to elaborate because prior to this occasion, we did asked the Commission whether they would like to explain their role. They said it’s not for them to explain their role - for us to explain the role. And I would like to have that opportunity. Otherwise, why I’m here for? With due respect, Sir. May I read the passage? Why we need a Commission, and why we need a Tribunal.


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And this is a passage written by a former Chief Justice Felix Frankfurter of United States of America, and he’s been talking about the illegal acts of the Department of Justice. He says, “Since these illegal acts have been committed by the highest legal powers in the United States, there is no final appeal from them except in the conscience and condemnation of the American people. American institutions have not in fact been protected by the Attorney-General’s ruthless suppression. On the contrary, those institutions have been seriously undermined and … unrest has been vastly intensified. No organizations of radicals, acting through propaganda over the last 6 months could have created as much a revolutionary sentiment in America as has been created by the acts of the Department of Justice itself”. So the key words there is, if we replace “American people” with “the peace-loving people of the world”, with people here in this hall, with the people of Malaysia - when the highest legal powers have committed illegal acts, there is no longer any appeal because then the Court will be complicit with the illegal acts. The only resolution, the only refuge is the conscience of the people. Therefore, the Commission that was set up pursuant to the Kuala Lumpur Initiative to Criminalise War, and the Kuala Lumpur War Crimes Tribunal is the implementation pursuant to this passage in the report called “The report for the Illegal Practices for the United States Department of Justice” and penned by none other than Felix Frankfurter. I will just conclude now by just casually saying - mass media has justified, especially the multi-national international mass media, that we need not abide by the rules of war. Why? Ah, in Afghanistan, in Pakistan; the people were fighting us. They all wear black turbans. The Taliban wear black turbans. They don’t have uniform. Therefore they are not army or soldiers recognised within the Geneva Convention as combatants. Pause. How stupid that distinction is made. But see, because we are numbed by brain-washing, by propaganda, we don’t even think. How stupid that statement is. So our problem, I will show it to you - that we don’t think, we will be victims of

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brain-washing. Why? Because the simple answer to that basis that the Talibans, the Afghans, the Pakistanis or the Palestinians are not combatants, are not soldiers because they don’t wear uniform, or they wear a black turban is fallacious. Very simple: 2nd World War. Who were the partisans? In France, in Italy, in Yugoslavia, in Poland, they didn’t wear uniforms. But they were partisans. They resisted occupation, they resisted aggression. And after the war, they demanded justice. Yet the people of Afghanistan, of Pakistan, of Palestine who have no uniform, because they’re not army. They’re ordinary people. Oppressed. And when you throw stones, oh, ah, they are enemy combatants. How ridiculous. And I hope in my concluding remarks that with these initial points in my introductory remarks, you will exercise your mind in the course of these proceedings when you hear the testimony of these witnesses, how evil is this oppression, how evil is war. And how evil is torture as a method of oppression. As a method to impose a will of one power over another. Mr. Chairman, I think you for your indulgence and your patience and I will now sit down and let my colleagues do their jobs and introduce the witness. Thank you. (audience applause) Zainur Zakaria: Thank you Matthias. Can we now begin with the first witness.

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Usha Kulasegaran: Yes. May it please the honourable members of this Commission, we call upon our first witness, Mr. Moazzam Begg.

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Moazzam Begg: Bismillah ir-Rahman ir-Rahim. My name is Moazzam Begg. I’m a British citizen and I hereby solemly and sincerely declare that the information as follows. I am 41 years old and I’m the director of the human rights organization “Caged Prisoners”. I’m a British citizen and I was held without charge or trial by the United States of America from 2002 to 2005 without charge

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or trial. I live currently in Birmingham in England in the United Kingdom, Great Britain. In 2001 in the summer I moved to Afghanistan, Kabul with my wife and children to work on a project to build a school for girls. After the September 11 attacks and the subsequent invasion of Afghanistan, I evacuated under American bombs and missiles to Pakistan where I took refuge and remained there helping other refugees until the night of the 31st of January 2002. There was a knock on my door. I answered the door to be faced by several people, none of them who identified themselves, none of them who asked me any questions. They produce no documentation, they stormed into my house, they put a gun to my head, they forced me onto the ground of the fore-court of my house, they shackled my hands behind my back, they shackled my legs and they put a hood over my head and carried me away into the back in the vehicle for the next 3 years. I discovered that amongst the people that were detaining me or taking me away that there were CIA agents present or at least that I assumed they were CIA agents. They were clearly Caucasian and speaking in American accents. One of them produced a pair of handcuffs and said that he was given these handcuffs by one of the wives of the September 11 victims to go and catch the perpeprators and then proceeded to handcuff my already cuffed hands. The Pakistanis’ response after they have taken me to this secret detention site was that they were acting at the behest of the United States of America, that I was not wanted for anything, I was not charged with anything, and that they themselves felt extremely uncomfortable by what they were doing. Usha Kulasegaran: Mr. Moazaam Begg, could you kindly elaborate what they meant by, “they were uncomfortable with what they were doing”. Moazzam Begg: What they meant by this is that they knew they had stormed into my house in the middle of the night; they had seen that I

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was a family man. They told me that, “We know that you’re not wanted in this country for anything, but that we have been asked to do this at the behest of the United States of America and that if we do not we will be struck so hard by the Americans that we will not be able to recover”. And so, they were apologetic, apologising to the point of actually saying, “I’m sorry”. And yet, they took me into secret detention and arranged and orchestrated the interrogations that followed after this and these interrogations happened over a period of 3 weeks at hidden locations where I was taken, hooded always, and shackled. Usha Kulasegaran: These detention centres that you were taken to. Were you at any time tortured? Moazzam Begg: At this point, at the point that I was held by the Pakistanis, I wasn’t; and that’s the irony - the Pakistanis didn’t torture me - being a 3rd world progressive nation, I had expected that they would. But it was only when I was handed over to US military custody did the abuse, torture and degradation began. Usha Kulasegaran: Yes, please proceed. Moazzam Begg: Prior to my abduction by the Americans, I had received a call from a friend of mine in the United Kingdom who told me that British intelligence had come to visit him and asked about my whereabouts in the UK, that they were interested in questioning me. And I told him, at the time, this was before my abduction, that please give them my telephone number, and here is my address, and if they want to see me, they are welcomed. He told me also that one of these intelligence officers would be coming to Pakistan, so I was expecting it. But I wasn’t expecting to be abducted. I was only expecting a phone-call. During the duration of my time being held in secret detention in Pakistan, this same intelligence officer appeared whilst I


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was being interrogated by the Americans, and it was clear to me then that not only were the Americans doing this, but my own government, the British government, was complicit in the abduction, and what followed was the torture of one of its own citizens. After being held for 3 weeks in this manner, I was taken to a US military base at the Kandahar airport in Afghanistan. The moment I was handed over into US custody at the air-base in Afghanistan necessitated, as far as the Americans were concerned that I would be thrown onto the floor, I would be shackled, hooded and my legs shackled and then taken onto an aircraft. This was a military transport aircraft. I was strapped onto the floor of the aircraft like in some of the picture you may have seen of people being seated

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Usha Kulasegaran: Can you demonstrate how that worked. Moazzam Begg Yes.

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[DEMONSTRATES] In that manner I had a strap put over my legs, a strap put over my ankles, my head was hooded and somebody, an American soldier came and put into my neck and said, “If you speak I’ll slit your throat”. Photographs I could tell were being taken at this point, eventhough I had a hood over my head, I could make out the flashes like the camera flashes who were quite evident despite the hood. So I knew they were taking trophy pictures. What I didn’t know at the time was Kandahar airbase, I was dragged onto the floor again by 2 soldiers, perhaps if I could demonstrate with just 2 of my friends the manner in which this movement took … Usha Kulasegaran: Please do. Yes

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[Moazzam Begg with 2 others DEMONSTRATE]. Please proceed.

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Moazzam Begg: This was the method in which we were moved from place to place, at any time we were moved as prisoners I was moved. Whether it was interrogation or whether it was the initial processing, which is where this began. In this manner, and in the way that I’ve described, I was thrown onto the floor, stripped naked by way of a knife that was taken to my clothing. I could feel the cold blade, the steel of that blade gliding against my skin as the clothes came off. I was punched and kicked and spat at. I was forcibly shaved. My head was shaved, my beard was shaved. The soldiers laughed at this. They photographed again, the kicked my feet, they kicked my legs, they took me in this manner into an interrogation tent and there I was interrogated by what I believe were FBI agent wearing caps with “FBI” written on it and they asked me question like, “When was the last time I saw Osama bin Laden”?, and, “When was the last time I saw Mullah Omar”? to which I replied, “I’ve never seen either of these people”. Usha Kulasegaran Mr. Begg, you’re still at Kandahar airport prison Moazzam Begg At present, this is still at the Kandahar airport prison.

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Usha Kulasegaran Can you tell us: Your interrogators, were they American? Moazzam Begg Yea. This was an entire American facility. It was a US air-base. It is, I believe, still a US air-base. The interrogators were from military intelligence, US military intelligence. They were all uniformed in US military fatigues. The interrogators, at this point consisted of US military interrogators as well as FBI agent and other unidentified alphabet agencies.


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There was also racial, religious, ethnic abuse that they used. They called me all sorts of derogatory names I would not like to repeat here but it suffice to say that they were clearing their minds that this was, er, very anti-Muslim in what they were saying.

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Usha Kulasegaran And the racial abuse again, by the Americans Moazzam Begg Yeah, there were no other nationalities that were holding us at this point. It was entirely an American operation. I was eventually re-clothed after being shackled very tightly so to the point that the shackles were cutting into my ankles and into my hands, my wrists and that they were bleeding, in the manner that I demonstrated just now I was also shackled so that my legs could not move freely without the shackles cutting into them, and it was excruciatingly painful. I was thrown then into a hanger, which I believe, was converted into make-shift prison cell that were divided with concertina or razor wire to make a cell that measured about 8 foot by 8 foot. And there I remained for several weeks. As I’ve demonstrated just now again, we were taken into interrogation, I was taken to interrogation many times, sometimes in the middle of the night, sometimes for the entire day, sometimes the interrogation would last for 5 minutes, sometimes for 24 hours; and everytime it would be with that method that I’ve demonstrated but also 2 guards, 2 American soldiers, outside the cell, one with an M-16 pointing towards me with a round chambered, I could hear the round being chambered, and one with an American soldier with a hand-gun pointing towards me, just in case I tried to escape. Usha Kulasegaran Were you given food and water? Moazzam Begg I was given food and water. It was very rudimentary, it was very basic, it was in the form of small pre-sealed packs. There were no fresh meals, there was no fruit or vegetables, there

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was no milk or tea or any of the normal things that a person would be used to. Simply water in little bottles, and pre-sealed pack.

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Usha Kulasegaran And you were kept in this cell, you said, for several weeks. Can you give us a rough idea how long that might be?

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Moazzam Begg I believe as far as the time was concerned it was about 6 weeks. And after the end of the 6-week period, which included several interrogations, sometimes these interrogations would include, and again I can demonstrate the method in which this happened Usha Kulasegaran Please do [Moazzam Begg demonstrates] Moazzam Begg Some of the interrogation would take place with me in that position, with again soldiers pointing guns, these interrogations would include not only the American intelligence but also British intelligence who would severely interrogate. And some of them lasted - they would ask me one question to confirm my name and then to go through the whole process as I’ve described and take me back to my cell. Other times they would bring me into this interrogation room and keep me there for 24 hours in that manner or in a similar manner and ask me repetitive nonsensical questions for a very great length of time Usha Kulasegaran At any time Mr. Begg did they actually explain to you why you were being detained in this manner? Moazzam Begg They used the word, “Now you have been neutralised”. And that meant, as far as they were concerned, it’s a preemptive action.


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They clearly told me that, “We know that you’ve done anything but you fit a profile, and as far as that profile is concerned, we have the right to keep you”. The worst thing for me is the knowledge that I knew I could get no support from the one place I thought I could get because of my own government’s involvement in what was taking place. I was after this moved to the Bagram detention facility, which is an air-base, a US military air-base that was built initially by the Soviets but has now been occupied and run by the US and coalition forces. The Bagram detention facility is the largest one in Afghanistan and at the time when I was there, we were not allowed to walk, we were not allowed talk, we were not allowed any movement at all, any breach or any infraction of these rules meant that we would be taken to the front of the cell area, our hands would be tied above our heads like so, and we would be left suspended to the top of the door of the cage with the hood placed over our heads. This meant that even reciting the Quran, even looking like you’re moving your lips would be interpreted as attempting to talk to another prisoner. And just for that we would be taken to the front of the cell and held in this way. Also during this period, and I remained in the Bagram detention facility for about 11 months in total before I was sent to Guantanamo; I was hog-tied, and hog-tied, again I’ll have to demonstrate it to you Usha Kulasegaran Yes, please do

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Moazzam Begg [DEMONSTRATES] It meant that you were completely immobile; you couldn’t move at all, and I would be kept in this manner for hours, sometimes days on end before, after which they would come along and interrogate me and try to see if whatever I was telling them was the truth or not, and as far as they were concerned I wasn’t, and they said that I would be sent to Egypt, where I knew, as somebody who had worked in the legal field

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and the human rights work before that torture is part of the unwritten convention of the place and it’s extremely severe there and they said that if I don’t cooperate, I will be sent to Egypt and a man called Ibn al-Sheikh Al-Libi was sent into this place, to Egypt, where they said he spoke and gave his story within 2 days and that I later subsequently that Ibn alSheikh Al-Libi’s confession was extracted in Egypt and that his confession was that he was working with Saddam Hussein on obtaining weapons of mass destruction and that I learnt subsequently also that Colin Powell cited this as a reason as credible intellingence to go to war in Iraq Usha Kulasegaran Again at Bagram, did they ever explain to you why you were being detained? You were there for 11 months. Moazzam Begg No. They didn’t explain it other than; it was clear I am multilingual, I speak English, Arabic and Urdu and it’s a curse and a blessing- the blessing is that you understand everything is being said to you; the curse is that everybody wants to talk to you. So the moment, I think, that they understood that I’m an English-speaker, they wouldn’t stop interrogating me. It kept on continuously; and I had been interrogated, by the time I left, more than 300 times. Usha Kulasegaran Again, Mr. Begg, what about food and water?

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Moazzam Begg The food and water situation in Bagram was exactly the same the same as it was in Kandahar. It was no different. The food ration packets we were given were twice a day, once in the morning, once in the evening. In the afternoon, we had a piece of mouldy Afghan bread, and that was it. There were no fresh foods, there was no fruit or vegetables or any hot drinks or anything nutritious. Usha Kulasegaran Yes, please proceed


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Moazzam Begg Again, as I was explaining that I was told by an American soldier that not only had people been taken to Egypt but also that they had been taken to Syria. I have learned again, subsequently that there was the case of Maher Arar, a Canadian citizen who was actually taken to Syria and tortured. So it wasn’t an empty threat that they were making. During this period I had also written letters through the Red Cross, the International Committee of the Red Cross, who were given access to us and I was allowed to write letters to my family. At this point I didn’t know what had happened to my wife or children; and so when I wrote these letters, I wrote to my family assuming they were still in the house in Pakistan or to my other relatives in Britain, and clearly these letters were going through American censorship, and they were being checked and I believe they recognised that this was one of my weaknesses, my family, and so during my time in Bagram the Americans at a point when I was hog-tied brought over photographs that they had seized from my house of my family, my wife and children and asked, “Where do you think they are”?, “What do you think happened to them the night that we took you”?, “Do you think you are going to see them again”? And all the while I heard the sounds of a woman screaming next door, that I was led to believe was my wife being tortured. And clearly their intent was to break any resolve that I might have had. Usha Kulasegaran Mr. Begg, at any point were you ever offerred the opportunity to legal representation, at all? Moazzam Begg No. And I have been a law student myself so I understand the law to a degree. I had made many requests, several requests right from the point of incarceration, from the point that I was kidnapped in Pakistan, then in Kandahar, and then in Bagram - I asked also the British intelligence services, as well as the Americans and the FBI who understood Miranda rights and so forth. But at no point was the option or the offer of legal counsel ever given or suggested. It was told to me that,

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“You are now outside the scope of the law”. The Pakistanis actually said to me that, “You have been illegally detained, but it’s official”. The CIA wanted me to cooperate with them, so did the FBI. I didn’t know what they wanted from me. I hadn’t seen any crimes. I’ve never seen a crime in my life other than the one that was perpetrated against me. And I said that, “I don’t know what it is that you want from me,” and they said, “Don’t worry. We’ll fill in the blanks. You just sign the paper”. I remained in Bagram for about another 11 months in total. I stayed there till February 2003. The one more point of note is that during this period I saw 2 people killed, beaten to death by American soldiers. Both of these deaths have been accepted by the US military and the administration as homocide caused by blunt force instruments and have featured in the film called “Taxi to the Dark Side” which won the Oscar for Best Documentary. Despite this, and I think probably because of this, when I was sent eventually to Guantanamo, I was put into solitary confinement. Usha Kulasegaran How long was that solitary confinement? Moazzam Begg 2 years. I stayed in solitary confinement in a tiny cell that measured about 8 foot by 6 foot without any natural lighting, without any windows, without any communication, meaningful communication with the family, without any phone-calls or visits or any knowledge of current affairs, issues or anything to do with my own case and I remained in this way. Sorry, one more point of note, I think, which is really important which other than the torture which is something that people speak about a lot is the degradation and the humiliation. The United Nations Conventions outlaw both. The degradation and the humiliation was often worse than the torture. And it included having to share a bucket, a small bucket, around


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so, that big, with 10 prisoners, for the toilet. It was not only degrading and humiliating, it was a stench, it was health hazard, it was disgusting. But it was, as far as they were concerned something necessary. And also, were only given 2 bottles of 500ml of water to drink everyday and not given water to wash with. We were taken forcibly to the showers every 2 to 3 weeks in a communal manner, everybody chained together and something that none of us as Muslim men from conservative backgrounds could ever agree with, but we were forced to do it. The journey to Guantanamo was excruciatingly painful. It meant that I had to be again forcibly stripped, forcibly searched in every cavity that you can imagine and then it meant also to be wearing blackened out goggles, tight ear-muffs, and a face-mask and to be shackled in what they called the 3-piecesuit which is a chain that goes around the waist; that chain is attached to handcuffs, and is pad-locked and then from the waist chain there is a chain that goes down to the ankles that you are completely unable to move your arms and you can only shuffle forward. And, in addition to the things that I’ve described about the sensory depravation meant that you couldn’t even scratch your nose. And so I pleaded with them to give me a sedative and they did and I woke up in Guantanamo in a daze. And as I described before, that I was into this cell that was really tiny. I was allowed outside of this cell that was inside a small room about 15 minutes twice a week. So half an hour a week, I was allowed out into a small area that was about 15 foot by 15 foot; and then I had to return to the cell.

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The reason I think I was put into solitary confinement is towfold. Because I was an English-speaker they wanted to perhaps a little like this Commission itself put me forward first because it would be very easy to process the English speaker without reams of translation of documents.

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any point when I am able to do so. So I think it was convenient, very convenient to put me into solitary confinement as a result of that. I was the first person in Guantanamo to be kept in Camp Echo, which was maximum security, isolation, solitary confinement. Usha Kulasegaran Again Mr. Begg, did they ever explain to you the reasons why you were at Guantanamo Bay? Moazzam Begg No, they did not. They only explained to me that they wanted me to be a cooperating witness and within 2 days of my arrival there after I was still recovering from the sedatives, the same intelligence officer, the same FBI agents who had come and threatened to send me to Egypt while I was hog-tied then came along with a pre-prepared confession and the asked the guards to leave the room, they locked the doors and they said, “Take a look at this, we want you to sign it, and this is the only way you will get out of Guantanamo. Otherwise,” they said, “one of 2 things could happen. You will either remain in Guantanamo for decades without anybody ever getting to see your case, and you can see clearly you’ve been abandoned even by your own government, so nobody cares about you; and the other option is that you face a summary trial and an execution. And this happen will happen in one of the chambers that we’ve already seen that have been built in Guantanamo”. So those are the options that they’ve given to me, and the confession said amongst other things that I was a member of Al-Queda, that I supported terrorism and so forth. It did not mention any specific acts of terrorism. It simply said that I had in my past, for example, when I had gone to Bosnia as part of an aid organization, they had added in that I had gone t o work for Al-Queda in Bosnia in 1995 and things to that nature. In the belief that I would somehow be sent to a Court where I could argue this case openly and have it rubbished, I signed the document hoping that that would be the case.


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Usha Kulasegaran So you signed a confession, in your own words that was a false confession?

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Moazzam Begg Yes, under the threat of torture or execution. (Usha Kulasegaran: Yes) At this point my interrogations became less adversarial but the psychological effect and the seclusion from anybody else took its toll on me - I’m a very, I think I’m a very sane, normal, calm and collected person but I had lost my mental ability to reason properly on several occassions and began to punch and kick and scream in the cell because I saw no end to this.

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On one of the occassions, a US military psychiatrist was sent in to the cell area and instead of trying to calm me down she suggested a method of suicide. She said, “Have you thought of taking your trousers off, threading them with your sheet, pulling them around your neck so you can make a tight noose and tying it to the top corner of your cell and jumping off”? And I said to her, “No you silly cow, not until you had put it into my mind”. Usha Kulasegaran They sent a psychiatrist to you to suggest suicide? Moazzam Begg Yes, they had indeed. And it is also noteworthy that there have been 6 deaths in Guantanamo Bay, 5 of which have been attributed to suicide, almost in this exact manner. They prescribed some drugs to me after this point, I don’t know what they gave me; but I hallucinated as a result of them and that is something that I had never experienced before, so I don’t know whether it was an experiment or whether it was just an effect of drugs that I wasn’t used to. Usha Kulasegaran Again Mr. Begg, in your own words, you were going through mental trauma as well as physical abuse?

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Moazzam Begg I think the mental trauma was much worse than the physical part. I think I could take the physical part 10-fold in comparison to the mental trauma, particularly the constant mentioning of my family, the constant mention of, “Do you want to see your family again? And if you do, you have to go do x, y and z”. Usha Kulasegaran At any point did your government ever attempt to intervene and aid on behalf? Moazzam Begg Consular visits began in about 2 years or so after I was taken into custody. Prior to that, they had all been interrogations and I believe the consular visits were in agreement with the United States who wanted to force through a series of legal proceedings called the “Military Commissions” which have been rejected by the entire international community as a kangaroo court. So that was was what they were planning to put me through. They had designated me for trial by military commission and I hope that the commission here understands that what the military commission is if not it requires a legal perspective and understanding that there is no country that has recognised the military commission as adequate for their country; not even in the United States of America, it’s only outside on Guantanamo’s soil. Eventually in November 2004 I was moved from solitary confinement and put into the blocks which are communal cells, the same size cell but this time there are 24 cells on either side of the 48 side block and I for the first time was put into the company of other prisoners and finally was able to communicate with other human being. Usha Kulasegaran This Mr. Begg was after a period of solitary confinement for 2 years, in your own words? Moazzam Begg After 2 years of solitary confinement, yes. And on the, I believe on January 20, 2005 I was, the decision was given to me that I


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was going to be released. I was taken back to Camp Echo and from there the process of my release was initiated and I was flown back by the British government to the United Kingdom where I was finally reunited with my family. Usha Kulasegaran Before this, as a Muslim in Guantanamo Bay, were you ever allowed to practice your religion for example Friday prayers, visits by the Iman, that sort of thing? Moazzam Begg No. I wasn’t allowed in that sense. There were things that they couldn’t stop. They couldn’t me from praying even if my hands were tied behind my back I still prayed. Even if I was hooded I still prayed. But the things that I couldn’t practice is that, no I didn’t pray the Friday prayers for 3 years. When I was in Bagram, for example, I didn’t even have water to make “wuduk” or the ablution, and I had to make dry ablution for a whole year. When I, even in Bagram and in Guantanamo, the month of Ramadhan came and went and I didn’t even know that it happened. Eid came and went and I didn’t know that it happened. I wasn’t able to pray in congregation and I wasn’t even able, for most of the time in Guantanamo, to communicate with other people who could give me some sort of religious and moral support which I clearly needed. I wasn’t even given access to an Imam or a Muslim chaplain who did, who was present in Guantanamo but who himself, as an American soldier was brought up for charges against the United States. Usha Kulasegaran So from the point of your initial arrest in Pakistan right to the point of your release in Guantanamo Bay, what period would that be, Mr. Begg? Moazzam Begg 3 years almost precisely to the date.

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Usha Kulasegaran Can you tell us in your own words and before the Commissioners, can you describe how you felt during that period of release, and would you like elaborate a little bit more on that 3-year period? Moazzam Begg I think the 3-year period was interspersed with all sorts of feelings of despair, hopelessness, of humiliation, degradation, disbelief that this was actually happening; a sense of loss as to how this could have happened and who is doing it, the United States of America, the fact that it is a country that, although I have never been to America, America has been to me, and it has shown me a face that I never knew existed. I had grown up in Britain on American culture, American films, American literature and music and so forth and I was witnessing now the nastier side of America and I think it was happening, in my estimation, clearly, it was two-fold: It was very racist, but it wasn’t just racist because some of the people who carried out the atrocities against us would be described as African-American, would be described as Hispanic. But clearly this was Islamophobic. Clearly every cell that we saw, every held we were held in, particularly in Bagram, had a name of it, had a name written by American soldiers and the common factor was that they were all Muslim so that they cells were called “USS Cole”, they were called “Twin Towers” - you could understand those ones - why the mentality would allow them to write that. But then you saw other ones like “Beirut”, “Libya”, “Lebanon” and “Somalia”, and the common factor here was that this was clearly a feeling within some sections of the US military that this was against Muslims and this was pay-back time for Muslims and that was manifested in itself by us seeing things like the American soldiers taking copies of the Quran, ripping it up and throwing it into places used for defecation, urination, kicking it, saying things like, when they handed us the Quran, “Come get your Quran, learn how to kill Americans”. So it was an experience that has evidently changed my life. It has made me to who I am today and as a result of that return, I


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have become a campaigner for people detained without charge or trial around the world primarily in Guantanamo but also in the secret detention sites and military detention sites. It has, this damage has been irreparable. I returned home to see a child I had never seen who is 3 years old. He didn’t know what it was to have a father. I’d come home to see other children - the last time I had seen them I was able to pick them up in the air and throw them and catch them, I couldn’t do that anymore cause they had grown too big, and it has not only affected me psychologically but it has affected my children and my wife and everybody around me. Usha Kulasegaran You’ve mentioned that you were detained for 3 years for a crime that you did not commit. There was no crime that you committed, but you did mention that you were being profiled and you were being neutralised. Can you elaborate a little bit more on that? Moazzam Begg From the point of being detained, I kept on asking, “Can you please tell what what it is that I have done? Can you please give me dates, times, places, names and allegations of what I’ve supposed to have done to you for which you’re doing this to me”? And they couldn’t, of course. I asked for a poligraph test. I asked for legal representation. I asked for the charges to be brough forth and I said that if I’ve committed a crime I am more than happy to go to prison for it because I believe in the rule of law. However, none of that was ever produced to me. It was clear from the moment that they said that “You are and enemy combatant. That you have no rights”, I remember when I was taken first into the detention centre in Kandahar and in Bagram, they shouted, “You are now the property of the United States of America and you have no rights”. So that was clear to me that we are at an entirely new category. I was familiar with the Geneva Conventions and so, I think, were the American soldiers, and they were confused. In the initial stages of our incarceration, they handed out to us EPW cards. And this is Enemy Prisoner of War card. That

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card remained with us for about a week until somebody recognised that this status offers them a classification which allows them human rights. So they removed these cards from us. We weren’t prisoners of war. We were enemy combatants and enemy combatants by the definitions of the US military at the time does not have any rights, does not have any legal rights, does not get treated in the way that an American soldier would wish to get treated if he was captured in war. So we were a new entity. We were not non-combatants, we were not prisoners of war, we were not civilians. We were enemy combatants. Usha Kulasegaran Lastly Mr. Begg, you did say that you signed a false confession. Did the treatment of you changed at all after signing that confession? Moazzam Begg The physical and adversarial treatement changed to a great degree. It was less forceful, it was less intense, and it was less in volume also. So yes, clearly, this is what they were looking for and having spoken to several people in the past and since my campaigning days, particularly on Guantanamo, I have seen that the treatment has been similar - whoever has “broken” to that point or being prepared to go through that system has had it less adversarial. Usha Kulasegaran Mr. Begg, would you like to add anything further before we conclude? Moazzam Begg I’d only like to say to the Commission that seeking justice has been something that everybody wants. If you were to ask the majority of the people in Guantanamo, the secret prison, “Do they agree with terrorism”? the answer would be, “No”. If you were to ask them to the right of self-determination and defence against occupation, the answer would be, “Yes”. And that is a normal human being. If you were to kick a dog in its face, it would bite you back.


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The thing that we are been trying to ask for and still fighting for, in the United Kingdom I have a case against British intelligence for complicity in torture against one of its own citizens. Clearly what was done to us was not only illegal, it was immoral. It’s more than the law. It goes way beyond what is technically right and technically wrong. This is about what’s morally right and morally wrong, and what was done to us was immoral and duplicitous, and the fact that the world’s most powerful nations have bandied together to fight individuals as myself and other have for me, places like the Commission are the only places at present where we can try to find a semblance of justice. So if justice is not done from here, then I don’t know where it’s going to be done from. Usha Kulasegaran Thank you Mr. Begg. Honourable Members of the Commission, would you have any questions for the witness? Zainur Zakaria Thank you Mr. Begg. Can you just remain at the rostrum? There are some members of the commission who may wish to seek clarifications from you. I would like to invite those members to now, if they wish, I would try to to limit your questions to the most minimal as possible because we think there are 6 more witnesses who are going to testify, so I’m will invite, who wish to start first? Yes Mr. Dennis Halliday. Dennis J. Halliday Mr. Begg, I cannot find words to comment properly on your experience, and I know you’ll understand that I’m setting aside my sense of horror, disgust, sympathy although I, as you know, I hold you in, with great respect. My question is: You mentioned Pakistan, American and British authorities being involved in your kidnapping, transportation, maltreatment, interrogation and so on. And I know you were drugged on your flight from, I guess from Bagram to Cuba. Moazzam Begg No from, sorry, yes yes

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Dennis J. Halliday Do you have any idea, did your aircraft land in any other country. My question is: Is there, are there any other States complicit in your experience? Moazzam Begg It’s difficult to know whether it did land in any other country. I have since, my investigations independently of this, looked at the flight log of my own aircraft and seen that it did land in Incirlik, in Turkey at the US military base there. And that’s something that I’ve learnt subsequently, but I didn’t know it at the time. Dennis J. Halliday And so as far as you know, no other landing took place? Moazzam Begg I’m not aware of that.

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Dennis J. Halliday Thank you very much. Hans-Christof von Sponeck? Mr. Moazzam Begg, needless to say, as a commission member I’m extremely grateful for the evidence that you have presented. I would like to know whether at any time during this painful 3-year period of detention, whether you could cite parties that could corrobarate what you have so movingly told us. Moazzam Begg Yes. Very easily. I have been in communication with American soldiers, interrogators as well as former prisoners who have in detail given testimony about what they’ve done. Their testimony is available very clearly. One of those testimonies is available in the film called “Taxi to the Dark Side” where not only I am speaking about the testimony but my testimony is corroborated by American soldiers, interrogators and other military officials.


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Hans-Christof von Sponeck May I ask supplementary question? Do you think that you could identify a list of such persons whom one can possibly contact to establish a network of evidence between you and fellow prisoners and others who may have had anything to do with your confinement? Moazzam Begg Certainly. And even here, right where we are now there are people who are held in Kandahar and in Bagram who can easily corroborate what I’ve said, but also, I’m more than happy to provide a list of the people. Hans-Christof von Sponeck Thank you. Michel Chossudovsky As you have acknowleged in your various statements, it would appear that those who were deported to Guantanamo were not so-called enemy combatants but civilians involved in various activities, humanitarian, religious and otherwise. It is my understanding from a report of Seymour Hersh which was published shortly after the invasion that the real enemy combatants were evacuated in US and Pakistani military planes to north-west Pakistan, several thousand in his account, and I believe that that was corroborated by other reports and that as a result of this evacuation of the real fighters involved in the resistence to US-Allied invasion, the occupation forces then initiated a process both, but not necessarily in Afghanistan but in various other countries to kidnap civilians and then take them to detention facilities and then ultimately to Guantanamo. Were you aware of this plan, and could you perhaps elaborate on that? Moazzam Begg In short, no, I wasn’t aware of this plan. So I can’t really elaborate. I know that when you speak to Rhuhel Ahmed, he has more knowledge about what happened up in the north and about some of the massacres that took place there before people were handed over to the US military. But in specific answer to your question about the “real enemy combatants” as you put it, I don’t know what techniques were used.

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Gurdial Nijar Mr. Moazzam Begg, thank you very much for your testimony, and we will of course evaluate it in the light and context of your very vivid graphic description. I have one question and one request. My question is: You said that 2 years after custody, you were paid consular visits by the British government, officers coming there on behalf of the British government. What we would like to know is, did they come to, as normally consulars should do to assist you, or was this part of, was this in furtherance of the US detention plans? That’s the first point. My request is: You talked about a movie or a video called “Taxi to Dark Side” which corroborates your testimony and if you could, if it is possible at all to point us in the direction of obtaining this so that we can also have a look at it in our deliberations. Moazzam Begg In the 2nd part which I’ll answer first, I’ve given a copy of this film to both Tun Dr. Mahathir Mohamed and to Hans. But also the 1st part of your question is that, the British, the first British consular visits that took place in Guantanamo were taking place with MI5, with the intelligence service present, so that I didn’t know that it was a consular visit. You couldn’t differentiate, you couldn’t distinguish who is from the Foreign Office and who is the intelligence officer. When they realised their mistake, then the following subsequent visits would take place with the Foreign Office official coming on one day and then the intelligence officer coming on the next day. It was clear to me that they had come to Guantanamo together. As far as the consular access was concerned, they asked general sort of consular questions, they said that, “This is not our jurisdiction, this is an American jurisdiction and that we have no say over here and that we can only ask about your welfare”. Which was neither here nor there really. They other thing that, I think, they did clearly in the initial stages was that they had, after agreeing that the United States


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and the United Kingdom agreeing on the process of the Military Commissions, which later were found by the British AttorneyGeneral Lord Goldsmith to be inadequate and said as such. At that point, in the initial stages, the British government had actually agreed with the process of the military commissions. And that’s what they told me. Gurdial Nijar Can I just briefly follow up on your answers. Did they explain to you ever, at that time, or subsequently, why they had not, you being a British citizen, not assisted you in any way right from the outset? And the other point is, have they ever since apoligised or agreed to make, or to pursue this, for example, with the United States government for detaining a citizen illegally because there have been no charges laid against; and the final point is you were released - was it through their efforts or was it the strength of the public opinion that at that time was very strong against Guantanamo? Thank you. Moazzam Begg Could you just repeat your first question please? Gurdial Nijar My first question is: Did they explain to you when they first visited you or subsequently why for 2 years, because you said it was only after 2 years, why they did not in any time intervene or intercede because it appears clear since no charges have been laid that your detention was clearly illegal? Moazzam Begg They didn’t explain. I did ask them several times why has it taken so long for you to come. Their response was as bizzare as I’m going to give it to you, “Why do you think? Why do you think we didn’t come”? I said, “I don’t know, that’s why I’m asking you”. And that was it, that was the only explanation they gave me. The whole idea, or defence, was that this is not our show, this is the American’s show, we are only guests here, we are only, we have no say in what’s taking place. Sorry, I’ve lost your other questions too. Can you repeat other questions?

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Gurdial Nijar I think it doesn’t matter. I think I get the flow. What the Commission would like to know is the extent to which the British government was complicit, British leaders were complicit in this whole sordid affair. That is the thrust of my question. Moazzam Begg I can produce for the Commission at a later stage documentation of my case against the British intelligence service and government which I am more than happy to provide to you through my lawyers and so forth, but the gist of it is that the British, I believe that this incarceration of myself and other British citizens could not have taken place and could not have continued without the involvement of the British government, who I believe are the closest allies of the USA in the War on Terror and knew exactly what was going on throughout the proceeding. Michel Chossudovsky I just have a supplemental question to what I mentioned earlier. To your knowledge, when you were detained in Guantanamo, were there any actual, were there any detainees which were combatants in the real sense of the word of being engaged in combat and could you perhaps identify or give us an idea as to whether the detainees were combatants or civilians since there was, in fact, a policy not of arresting and detaining combatants but, in fact, non-combatants like kidnapping civilians in different countries around the world; and so the composition of the detainees, to your knowledge, is a very important consideration. Moazzam Begg I believe there is statistic details available that mentioned 92% of the people captured and held in Guantanamo Bay were not captured on the battlefield and were not part of Al-Queda or Taliban. The remaining 8% include about 6% of Taliban, 2% Al-Queda. The, if you look at the statistics, the numbers of people that were handed over, the largest group were handed over by


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Pakistan. Pakistan was not at war at the time. There was no war taking place in Pakistan. And 600+ people were handed over. I have a book called “Enemy Combatant” which I wrote after I returned from Guantanamo and I have the same publisher as the publisher or Pervez Musharraf’s book “In the Line of Fire”. In his book, he says that he received bounties of millions of dollars for the people that he turned over to the United States of America. So clearly, they weren’t captured on the battlefield; they were sold for a fee. Zulaiha Ismail Mr. Begg, I know you did say that the mental torture you experienced was far more intense than the physical torture and that you had a visit from a female psychiatrist who in fact suggested that you commit suicide. Were there any visits by physicians to examine the extent of the damage either through the military or by any outside … Moazzam Begg The only medical examinations I had, and I believe any of the other prisoners had in Guantanamo and to this is through, were from the military, whether it’s from the US Army, or whether it’s from the US Navy or Air Force or, I think they called them Psychological Operations Units. They were only military. Although I was told that these are supposed to be for my psychological welfare, evidently to me, that was not the case and I’m sure that other prisoners who had similar experiences, who had much more harrowing stories, they have a unit in Guantanamo called the Maximum Security Unit where they take prisoners who have been psychologically abused and degraded and kept there, we’re told, for their own safety. Zulaiha Ismail Could we also have copies of your book “Enemy Combatant”?

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Moazzam Begg You could if you go to amazon.com (audience laughs)

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Zainur Zakaria Are you going to buy them? If there’s no further questions from any of the commissioners, may I then invite the 2nd witness to present his evidence. Moazzam Begg Thank you. Zainur Zakaria And I thank you Mr. Moazzam for your testimony.

Avtaran Singh Honourable members of the commission, the next witness is Rhuhel Ahmed. His declaration is marked as D2 in the bundle. Rhuhel Ahmed Bismillah ir-Rahman ir-Rahim. I, Rhuhel Ahmed, of full age and a citizen of the United Kingdom hereby solemnly and sincerely declare as follows. I am a 27-year-old. I live in Sandwell, England, and the purpose of making this declaration is to put on record of my torture in Afghanistan and Guantanamo. In 2001, I along with 3 friend travelled to Pakistan for a friend’s wedding which was being organised by his father. We got to Pakistan 3 weeks before the wedding, and decided to tour Pakistan. While touring, we also decided to go to Afghanistan to tour and went with an aid organization from Pakistan to aid the poor people in Afghanistan of medical supplies. We travelled to Kandahar through Pakistan with the aid organization. And as soon as we entered Kandahar, the 1st day, the bombing commenced by the United States of America. We stayed 2 days in Kandahar and tried to leave back for Pakistan. We were told by the aid organization that the borders had been sealed and that no one could enter or leave. The aid organization proposed that we follow them to Kabul where it would be much safer so we decided to follow them.


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We stayed in Kabul for another 2 weeks. We asked to go back to Pakistan if it was possible but everyday we would be told that the borders are still sealed and it’s impossible to leave.

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After 2 weeks, we were told by a member of the aid organization that a minibus, a 17-seater minibus would be arranged for us to go back to Pakistan only if we pay for another 13 individuals. So we paid for these 13 individuals and 4 of us in total to go back to Pakistan. But later on we realised after driving for 1 day, 1½ day, we noticed that we was going in a different from the direction that we came initially to Kabul.

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Then the 2nd day after travelling, we ended up in a Taliban compound where there were Taliban fighters and foreign fighters. We asked why we are being brought here, and we was not given any answer but we was taken to a hut in the mountain of Kunduz in the north of Afghanistan where the fighting among the Taliban and the Northern Alliance was very heavy. We was kept in this hut for 2 weeks. Food and water was given. We was allowed to roam around, go up to the town, and so forth. No restrictions was imposed on us. I along other friend would go to the Taliban compound training camp would ask, 2-3 days we’d go and ask, “What’s happening”?, and when would we be able to leave to go back to Pakistan, but we would never be given any answers. … we don’t know anything about your situation. After being there for 2 weeks, we realised that we heard from certain individuals that the Taliban had lost power throughout Afghanistan except in the north and in the south of Kandahar. So basically we was, the province that I was in which was Kunduz was under seige by the Northern Alliance, at the time it was under General Dostum who is an Uzbeki warlord. Then we were heard, and we was told by certain individuals who were supporting Taliban that the Taliban government have negotiated with General Dostum to give them a safe-way back to Kandahar in return for their money, for the vehicles, the weapons and so forth.

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We was given 2 options by the people who, by the Taliban. That either we can stay in Kunduz and the Northern Alliance, Dostov’s many force will take over and we can make our own way back to Pakistan, or they have granted them a safe-way, a safe passage back to Kandahar and they said that we are more than welcomed to join their convoy. So after this was amongst ourselves, the 4 of us, we decided it is much safer for us to go with the Taliban, to get back home, as there has been a treaty between them. The first night when the Taliban surrendered, we was taken to the outskirts of Kunduz and we was travelling towards Ashrift(?) from what I was told. In between Kunduz and Ashrift(?) was a desert. We was taken to the outskirts of Kunduz, that particular night we had to sleep in the desert, and that night we was bombed upon by the Americans. The whole night we ran and tried to hide in caves and many people got killed that night. In the morning I amongst my friends - that night we lost one of our friends, Monir, who till this day is not with us, and we don’t know where he is. In the morning, we buried those who were dead. We tried to attend those who were wounded. A few hours later the Taliban came in their trucks and vehicles and we was told to board and then we was driven further deep into the desert where there was a front-line, a temporary front-line errected by the Northern Alliance where the Taliban was surrendering themselves over. So we also surrendered ourselves over. We had great difficulties communicating because of the language barrier we had. We couldn’t explain why and what we was doing in Afghanistan. So Northern Alliance assumed that we were also part of the Taliban and arrested us. We was then marched through the desert for 2 days without any food and water. While being marched through the desert by General Dostum’s forces, I had witnessed American soldiers to be present in their jeeps and their buggies. So I think the whole operation while under the supervision of the United States army. After marching through the desert for 2 days we was put into trucks and driven to Mazar-E-Sharif where we were


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photographed first and after at dawn, at 6pm, roughly about 6pm, we was made to board long vehicles made of containers and some of the containers were made of canvas.

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I was one of the lucky ones who was put into a canvas container along with about 200-300 people per container. After being in the container for 30 minutes, I heard noise and banging from the other vehicles and as my vehicle was made of canvas, we ripped open the canvas and stuck our head out and I had seen the other containers which was made of metal people inside were banging. I presumed there was banging because there was lack of oxygen because these containers were only designed to transport goods from A to B. It was not designed for humans. So obviously the ventilation - it was not enough air for the people in the containers and they started suffocating and banging.

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That resulted in the Northern Alliance shooting the bottom side of the container which resulted in killing and wounding many people. My friend Asif who was injured by a bullet while in the container. We was then driven to Shabarghm prison which was also in the north, a province of Mazar-E-Sharif, which took whole of a day. There were hundreds of trucks. Whilst we got to the prison, there were massive ditches dug and in those containers where people suffocated and severely injured they were taken off and thrown into the ditches and bulldozers were brought and a sand was just thrown on top of them. Some of them who were injured still alive, and they all was buried, which I witnessed with my own eyes. Me and Shafiq were put in the same container. And my friend Asif was in the metal container. He survived. Unknown male Er, Mr. Ahmed, just a minute. Could you confirm that in Mazar-E-Sharif and Shabarghm, were there american presence?

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Rhuhel Ahmed Yes Unknown male Carry on Rhuhel Ahmed When we got to the Shabarghm prison which was run by the Northern Alliance, supervised by the Americans, we were beaten, then put into our cells. My friend Asif was shot in his elbow and his wound was not attended to. They only gave him iodine and then wrapped a bandage around him. Many people died in that prison because they was severely injured. In my cell, I was with the Arabs in room no. 1 and 2; and one Arab was shot in his shoulder and the bullet exited through and took both of his jaw out. He died in my room. We was never questioned by the Northern Alliance. I spent 2 weeks without water or food and we had cells which was 5 metres by 5 metres and in each cell there was about 40 people per cell. After the 2nd week of being there, the International Red Cross came and they gave us food and water. Then on the 31st of December 2001 a prison guard came and asked for an English-speaking person - who’d have volunteered to speak to the press, to the media and I said that I would go out and speak. They took me out, they stripped me naked, tied my hands behind my back and then marched me out of the prison and sat me down 6 feet away from an American soldier.

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Then I was taken to a room and I was questioned by the American and I told him that I was from the UK and how we ended up up in Afghanistan. And then he said to me, “Now you are in American custody and you’ll be treated much better than you’ve been treated by the Northern Alliance”.

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I was taken out and then I was hooded, and taken into a room and punched and kicked. Then I was put onto a truck and taken to an airport in Shabarghm. In the plane we was made


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to lie down, and tied with ropes. And if you moved, you would be punched and kicked with the butt of a gun the same method that Moazzam has described, the way we would be tied on the plane. I was taken to Kandahar, my hands were tied behind my back, my feet were tied with plastic … a hood was placed over my head.

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Once I got to Kandahar, they made me walk round in a circle for many hours. It was midnight, past midnight, no shoes, barely any clothes, it was freezing cold, and they made me walk round for many hours, and they had dogs barking at us.

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Then I was taken into a tent, carried by 2 soldiers. My hood was taken off me, I was photographed. Fingerprints were taken, a swab was taken, and a strand of my beard. Then they put me into a hanger, as Moazzam has described, at that particular time, the hanger was divided into sections where there was 10 people, 10 detainees were kept in one place.

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We was given no water or food for the first day. The next day I was interrogated the way Moazzam has described hands kneeling down, hands on your head with a soldier with his handgun to my head. Then I was put into the tent in Kandahar, which was a make-shift prison, and each tent there was about 20 people per tent and I was given a blue uniform to wear. Throughout my stay in Kandahar for 6 weeks I was interrogated by the FBI, the CIA and I was visited by the MI5. Throughout the interrogation and my stay I was abused. Punched, kicked, spat on. Then on the 14th of February 2002 I was taken to a different tent and my hair and my beard was shaved. Clothes was cut off with a pair of … blade and they put me into 3-piece suit, with orange jumpsuits, goggles blacked out, ear-muffs and my, I had mitten on my hands which was duck-taped. And I was put onto a plane and I was tied in a different position from the first plane. I was seated down by a chain or a strap was placed over my chest and my feet were shackled to the floor so I couldn’t move my legs. And the journey took more

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than, I think, a day and a half, I did stop somewhere, and it was extremely hot when I changed planes. … Guantanamo, we got off, we was thrown off the plane, put onto trucks, driven to the port, we had to get on a ferry to get to Guantanamo. On the ship, or on the ferry, I was beaten. And it was a beating that I’ve ever had. I was kicked in my left thigh over a number of time in the same place because I kept on moving and because I was from the UK. Once we got to Guantanamo, I was taken through a process, as they called it. We had to go through this tent, I was stripped, given a bar of soap to shower with my hands still tied. Then I was taken to the tent and full cavity search was done. Photographs were taken, fingerprints, swab and so forth. Then I was taken to my cell which was about 2½ metres by 3 metres with 1 blanket, 1 insulation mat to sleep on. The floor was made of cement and the 4 walls and the roof was made of some sort of soft material that you see in tennis courts which I later realised that I was in Guantanamo. I never knew neither was I told that I was being transferred to Guantanamo. The next day I was interrogated by the Americans and I was asked personal background and family details. Day after I was interrogated with the British intelligence and the Foreign Ofiice and they told me that they couldn’t do nothing for me because they didn’t have any jurisdiction in Guantanamo; and the Americans would say that they can’t release me because the British don’t want me home. Throughout my detention, I was accused of many things. First of all I was accused of being a foot-soldier for the Taliban, and as time went on in Guantanamo the accusation got bigger; so from a normal foot-soldier I became a Captain, and a Colonel, and eventually when they had done with the ranks of the Taliban I was moved to the ranks of Al-Queda. For me, my experience was not as bad as some detainees. But in 2003 we was shown a video called “Turnip Farms” and it was a video of Osama bin Laden giving a speech in


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Afghanistan in 2000 and I was accused along with my 2 friends of being in this video and we was accused of knowing the plots of 9/11. That was a main allegation against me and my friend. I had been put into solitary confinement for 5 months and I went into interrogation …. based on … sometimes throughout 2 days non stop. And … specific issues. We would have a hood on the floor and the feet shackles … hands cuffs attached tip on hands behind your knees … chain padlock keep you in that position … 2 days … dog barking at you soldier coming kicking punching you … loud music which I thought was quite bizzare. Later on … heavy metal rock music. This kind of music … after being in that position for hours, the pain in unbearable … leg calf, cramps but before … such a small room flashing can’t concentrate. .. and you can’t put your … psychological … the MI5 would come … and during that period … 2000 and they had … after… back home… came back to find that the were in the UK … I was working … student … told that 6 months … take … to yourself … sheer against the wall … wall … slamming door .. … just before the MI5 came … sign a confession that we were involved … signed a paper saying that … and once I had signed this paper all the harst treatment … was released without any charges … the whole experience … family … eminem, changed to heavy metal when they introduced music, flashing dog barking, you can’t concentrate, music, it goes through you, makes you see things that are not there, psychological effects worse than physical, when Gen Miller came in power in guantanmo, MI5, every 6 months, they had said that to the americans, after they went back home, came back after 5 months, that I was … university student, travelled on false passports, false documents, injections forced every 6 months, told flu jabs, if didn’t take … hog-tie you, like a scorpion, force you, slam onto floor, last 3 months, asked to sign confession, that were were in that video, I signed a paper to say we were in afghanistan in 2002, after, march 2004 released with out any charge to the UK. Whole experience, afftected, I feel government of US, to bring closure to all the victims. That’s it.

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Zainur Zakaria Thank you. Hans-Christof von Sponeck … Released without charge. I would like to know what have the British authorities done since your release with regard to redress … no one can bring back these 3 years … surely the case hasn’t ended for you. I would like to know what has the British done to bring redress to you and what your intentions are to seek such redress? Thank you. Rhuhel Ahmed The British have done nothing for me since the day I was released. The day I was released, the British came and … I have a case also with Mossad in UK … I have had no help from the government. Zulaiha Ismail … How old were you when you were taken in? Rhuhel Ahmed 18 Zulaiha Ismail Were you the youngest prisoner in Guantanamo? Rhuhel Ahmed No. I was the youngest adult. There were much younger ranging from 9, 11, 13, 14.

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Michel Chossudovsky You mentioned the containers in Mazar-E-Sharif and the deaths which occurred either as a result of suffocation or a result of the bullets that killed people when the … made it into the containers.

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Do you have any indication as to who actually ultimately gave the orders to use those containers and to shoot into the containers? Was, were the United States officials in any way connected with that decision?


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Rhuhel Ahmed I wouldn’t know that, but I did see US Army present during the whole transfer from … to … I think it was supervised by the Americans. Michel Chossudovsky … the actual shooting was done … but … americans … didn’t actually do the shooting. Did they give orders? Rhuhel Ahmed No Michel Chossudovsky But they were present during the entire period when the operation took place?

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Rhuhel Ahmed Yes Mohd. Akram Shair Mohamed … You were subjected to very intense … interrogated under very …. Circumstances ... did you succumb? Did you sign any confessions …

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Rhuhel Ahmed Yes. We all signed confessions to say that we was members of Al-Queda.

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Mohd. Akram Shair Mohamed … You were forced to take injections. How did you feel after that? … Rhuhel Ahmed Very drowsy, sleepy. Gurdial Nijar Testimony … just to follow up, you said … supervised by the US. Can you give us a little more elaboration on the basis of your conclusion?

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Rhuhel Ahmed We was transported by … drove through the deserts, convoy stopped half hour … I saw american in sand buggy, flags close by, see them all the way from A to B to C. During that period the Americans were in their … jeeps and had American flags ….. Musa Ismail You said that you signed a confession that you are a member of Al-Queda. Are you a member of Al-Queda? Rhuhel Ahmed No.

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Musa Ismail … Do you have a copy of your confession? Rhuhel Ahmed No. … Dennis J. Halliday The brutal … that you received from your American captors. Do you believe it was the Commander-in-Chief authorized official institutional brutality and torture; or abuse by american troops, poorly educated, deprived, who undertook to brutalise you… Rhuhel Ahmed I think it was authorised by the higher ups. Dennis J. Halliday You had a sense Rhuhel Ahmed Yes Michel Chossudovsky Do you have any proof … any formal information …

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Rhuhel Ahmed … Rumsfeld


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Matthias Chang Mr. Chairman, I don’t think he would be able to answer … we have adduced 10,000 pages of documents … hindsight … but he can only say from his personal experience … Zainur Zakaria Point taken. Hans-Christof von Sponeck You will appreciate that the task of commission is to collect the best, the tightest evidence available … to the Kuala Lumpur War Crimes Tribunal, in this context, I will ask you, do you think it can be misinterpreted what you have said … testimony. Here are 3 young British … to attend a wedding, we know how … and then just a few weeks before you decide to go across the border into Afghanistan, I’ve … lived there 10 year … at a time when things were volatile, not very convincing … we want to support what is grusome stories, but you must help us … explain a little bit more this decision to have a holiday across the border. Rhuhel Ahmed It is a time when many youth, teenagers … I was a kid that grew in the slums, doing various things I shouldn’t be doing, reasons … not particularly aware of the situation United States … , I didn’t take into consideration … to smoke. I didn’t feel that I was entering a dangerous zone … That was my reason Hans-Christof von Sponeck Thank you for that very honest response Matthias Chang … When you were, all people detained, dark … skinned, opium, any american, whites who were NOT detained, Rhuhel Ahmed No I don’t. Zainur Zakaria If no questions … next witness

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Avtaran Singh Mr. Sami El-Haj Sami El-Haj (in Arabic) Translation for Sami El-Haj Assalamualaikum. I Sami El-Haj … passport number … citezen of Sudan do hereby solemly and sincerely declare as follows. I am 40 years old. I am the head of … and human rights … of Al-Jazeera network … Sami El-Haj (in Arabic) Translation for Sami El-Haj The purpose of making this declaration is to put on record the unlawful detention of … and the subsequent torture in Afghanistan and Guantanamo Bay. … making this declaration in order to seek justice … and in order to voice out the … prisoners who are still … in Guantanamo Bay Sami El-Haj (in Arabic) Translation for Sami El-Haj On the 11th October 2001, … arrived in Afghanistan to cover the war in Afghanistan. On the 15th of December 2001 … was a journalist for Al-Jazeera … when I submit my passport for … visa I was stopped. The immigration … stating … immigration officer say. Sami El-Haj (in Arabic) Translation for Sami El-Haj The immigration officer … I would be allowed to cross the border unless … would be arrested instead of me. Sami El-Haj (in Arabic)


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Translation for Sami El-Haj … officer … my passport did not correspond … passport number did not match … pakistan visa …

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Translation for Sami El-Haj … my colleagues working in Al-Jazeera whose name is Saddah el Haq(?) and when we were detained, when I was detained, they held some materials belonging to Al-Jazeera TV.

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Translation for Sami El-Haj The next day I was called to the intelligence office. They told me there is a mistake and they will clear it. I waited there in a room. I was there for 3 days when the Qatar consulate named Hassan came with a letter saying he is the acting Ambassador and told the intelligence officers that he knows me as a journalist from Al-Jazeera. The intelligence said that they couldn’t clear me until they get clearance from the head office. The consulate went to the head office in Quetta. After 2 days, the consulate called me and said the head office needed papers from Islamabad and he then went to Islamabad. From Islamabad, the consulate called and said that he will try to get the passport file from Sudan. Sami El-Haj (in Arabic) Translation for Sami El-Haj After 23 days the Pakistani authorities wanted to send me back. It was a Monday and I was taken to Quetta prison. Sami El-Haj (in Arabic) Translation for Sami El-Haj In Quetta prison, I was given to the American troops.

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Sami El-Haj (in Arabic) Translation for Sami El-Haj Later I was given a prison clothes and shackle. I was taken with a few other prisoners and we were sent to the airport at 11pm and we were handed over to the United Stated military the same way brother Moazzam has mentioned just now. We were taken to Bagram prison in shackles and hooded. Sami El-Haj (in Arabic) Translation for Sami El-Haj We were in the plane and bound down with harness. The flight was for possibly 3 hours and it was cold. When we landed my feet were numb. 2 soldiers dragged me and threw me out of the plane onto the ground resulting my right knee being very badly hurt. I was then kicked in the leg. I was not given any treatment. Till today I walk with limp in my right leg with assistance of a walking cane as a result of this injury. I still have a disability in my right leg and Insha-Allah going to undergo some treatment and surgery very soon. Sami El-Haj (in Arabic) Translation for Sami El-Haj It was very cold in Bagram as it was winter. We were about 40 detainees and my number, I remember my number was 35, and in Bagram we faced the first shock. The first shock is that we had to go naked. We faced lots of pains but we forgot the pain and the cold weather because we had to be naked and as Muslims and as humans we can never accept such a treatment which is being naked in front of each other and in front of the female soldiers who attended to that detention centre. So many inhumane things happened in Bagram which I cannot mention today out of respect to you, your Honour. Sami El-Haj (in Arabic)


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Translation for Sami El-Haj And directly after I was arrested they started interrogating me and the first accusation was that I was the cameraman who photographed and video recorded the interview of my fellow colleague, These Alluni(?) with Osama bin Laden.

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Sami El-Haj (in Arabic) Translation for Sami El-Haj Of course I denied doing that. That’s because I was having a different duty in Kandahar and I told them, I told my interrogators it’s not necessary to deny this action because even if I did that it would have been a part of my duty as a cameraman and as a journalist and any journalist would not deny taking photos of an interview. But indeed I had not done that because I was having different duties in Kandahar. Sami El-Haj (in Arabic) Translation for Sami El-Haj The situation in Bagram was very bad and severe. We were not given clothes, enough clothes that suits the very cold weather as the degree could go below zero Celsius. We noticed that water could freeze in the bottles because of the very cold weather. We were given very little food and we were not allowed to go to the toilet except for 3 times a day and even the place, the restroom was an open air, an open place where the detainees have to go out one after the other and answer the call of nature in front of everybody. Sami El-Haj (in Arabic) Translation for Sami El-Haj During the time in Bagram we were not given any medical treatment. We were not allowed to stand in our places. We had to squat or sit without any movement. We were not allowed to talk. We were not allowed to pray. We were not allowed to do any of our religious rituals. All this was not

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allowed. We were not allowed to contact our families or the friends or companies we worked for. Sami El-Haj (in Arabic) Translation for Sami El-Haj When I used to complain from the pains in my leg I was asked to keep silent and when I did not keep silent, I kept to complain, they hang my right leg on one wire for 8 hours 8 continuous hours. New groups would come and that might extend to 16 hours of hanging of my leg. Some people, I saw some people enduring that for 6 continuous days. Sami El-Haj (in Arabic) Translation for Sami El-Haj After about 13 days, I was called to interrogation and when the interrogator accused me of the same accusation he asked me about my name, my job, my age, and during that time they had my passport and flight ticket with them and my card as well. And when they confirmed and recognised my identity they accused me of taking, of recording the video of the interview that Al-Jazeera aired after September 11. And after I confirmed to him I stressed that I was not the person who took the video recording of that interview and that I was in Kandahar and I was with a CNN group, he asked me, “Where were you during the September 11 incident”. I told him I was working in Syria and he checked my passport and confirmed that I was in Syria. After that he told me, “You are the wrong person, we arrested the wrong person, and we don’t know what to do”. Sami El-Haj (in Arabic) Translation for Sami El-Haj He asked me, “If we release you, what would you say”? I said, “I will tell them that you torture people without any justification and you don’t hold the empty principles you keep on banging about and talking about”.


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Sami El-Haj (in Arabic) Translation for Sami El-Haj After that he asked me, “Do you need anything else”? I told him, “I need to be with my family now”. He said, “This will happen, but not now”. And I asked for an extra blanket. He gave it to me and I went back to the detention centre. Sami El-Haj (in Arabic) Translation for Sami El-Haj And after 17 days, we were sent back to Kandahar and in the same way we were interrogated and treated in Bagram, we were treated in Kandahar. The soldiers beat us, they cursed us, they used so many filthy words that I can’t mention now in this place and they put us into groups in different tents and they interrogated me again so I told them my whole story and at the end they told me, “You are not wanted and you are the wrong person in detention”. Sami El-Haj (in Arabic) Translation for Sami El-Haj The situation in Kandahar was not better than Bagram. We were treated in the same way. And we were banned from taking showers for 4 months until the insects started living in our bodies and our clothes were torn down. After 4 months, we were allowed to take a shower but if we did not get to take this shower could have been better because we had to take a shower in an open area all together for a very short time. After the shower they started shaving our hair but they were drawing different shapes with our hair while shaving for us. They were drawing cross shapes, they were drawing shapes with our beards and our body hair. Sami El-Haj (in Arabic)

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Translation for Sami El-Haj And in Kandahar again they promised me to send me back to my country but this never happened except on the 13th of June 2002 when I was sent to Guantanamo Bay in a journey that lasted about 22 hours. Our faces were hooded, we were hooded. We were clamped to the transfer helicopter. We were seated in a way that brother Moazzam has mentioned earlier and after 8 hours the plane landed for awhile then we continued the journey to Guantanamo. Sami El-Haj (in Arabic) Translation for Sami El-Haj Immediately after arriving in Guanatanamo, they interrogated me for about 4 hours, the FBI, the CIA and other agencies interrogated me and there was a translator. They asked me about my story from my birth until they day of detention and they continued interrogating me until they decided that the information that they have is exactly what I said, and they told me that, “You will be released but we don’t know when. We don’t know if it’s today or tomorrow because this needs a political decision. We urge you to be patient. We advise you not to mix with the other detainees”. And they gave me a picture of my little son which was in my wallet. After that they asked me if I need anything. I asked for some books and the first book that they gave me after the Holy Quran was the book of Al-Flela Holela(?) which is an Arabic story book. Sami El-Haj (in Arabic) Translation for Sami El-Haj Time might not be enough to mention and list down the many ways of torture that we undergone but I must mention that alongside physical torture and banning us from treatement, there was a group of psychiatrist that used to study the personalities of each and every detainee and study the weakness points for each person and then pass it to the interrogation team. I also received the report from the lawyer who was defending me about this issue confirming this issue


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and this group of consultant psychiatrist is a led by a doctor called Louis Morjan Bankis(?). Their main methodology was psychological torture and this was much worse than the physical torture that we have undergone. Sami El-Haj (in Arabic) Translation for Sami El-Haj The psychological torture that we faced has degraded our dignity and we were always prevented from performing our religious duties. The Holy Quran was torn down in front of us. We were not allowed to do prayers in congregation as brother Moazzam has mentioned earlier. We were kept in cells that were lighten 24 hours so that we don’t know the timing of the prayers. We were disturbed during our prayers while we were performing our prayers individually. They were making fun of the prayer and the Quran. The interrogators sometimes stood on the Holy Quran and refused to step away from it until the detainee confirms whatever they ask for. Add to that, the sexual harassments that the detainees had to face. Add to that carrying the Israeli flag and putting it on the detainees and as well as forcing the detainees to stand and salute the American flag in several times. Sami El-Haj (in Arabic) Translation for Sami El-Haj And when some detainees fell sick, they were not treated until they answered the questions of their interrogators. Many of the detainees lost their eyes, their arms and other organs or even got permanent diseases. This is because when some detainees fall sick or get injured, the interrogators would amputate or cut that organ instead of treating it. And when some of the detainees have toothache, they were asking for medical treatment but the interrogators will always answer the questions before they get the treatment and when they answer the questions to get the treatment, they are sent to the dentist who will usually extract the wrong tooth.

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Sami El-Haj (in Arabic) Translation for Sami El-Haj And as a result of this very bad treatment, many of the detainees got some psychological disorders and diseases. Some of them got this because of the misuse of the injections that they were injected in Guantanamo where the detainee would become very dizzy after receiving this injection. We saw many of these cases. I remember Othman Ibrahim(?) and Dr. Aiman Arthafi(?) from Yeman and other from Algeria who have gone insane after these injections. Sami El-Haj (in Arabic) Translation for Sami El-Haj We were not given any opportunity to stand in front of any Courts, any courts of justice. We asked for justice but they did not listen to us. They did not accept that and we were always sent to military committees which bases its information on secret files and secret information so that they decide that we are enemy combatants and the definition for an enemy combatant is that any person who has a relation with AlQueda, Taliban or any related group even if that person have not done anything to harm the United States, this relation would be enough for them to be called an enemy combatant. And on this definition, this very wide definition, many of us were arrested and taken to Guantanamo. Sami El-Haj (in Arabic) Translation for Sami El-Haj And after 5 years of the struggle of lawyers to get an opportunity to go to American courts, American civil courts, the Congress have issued a resolution that denies us from this right that we got from the lawyers’ struggle.


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Matthias Chang Excuse me Mr. Sami, but because of time factor, could you complete your statement as per vis-à-vis the commission first then you can amplify later. Because if you don’t follow the declaration, then the evidence may be, you know

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Sami El-Haj Ok. (continues in Arabic) Translation for Sami El-Haj During my stay in the detention centre, they asked me to cooperate with them and they offered me to work for them, for the CIA, and they promised that if I cooperate with them, I’ll be released very soon so that I can guide them to Al-Queda members and in return they will be offering me an American citizenship and they will secure the education of my only son. Sami El-Haj (in Arabic) Translation for Sami El-Haj Of course I refused this offer. I totally refused it and I started my hunger strike on the 7th of January 2007. This hunger strike continued up to the 1st of May 2008 when I was released and returned to Sudan and I stopped my stike. Matthias Chang Mr. Sami, can you just re-read through the … that besides what you amplify in your oral testimony - that what you gave to the Commission in this declaration is your testimony. Just to confirm that. Sami El-Haj Yes. I confirm all what is written here, that is what I talk to my lawyers. Zainur Zakaria Thank you Mr. Sami. Now we, there was an announcement we shall be stopping at 12.30 and we will recommence at 2.45 and I think members of the commission who wish to ask questions can do so when we reconvene at 2.45. I think for the

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moment we shall adjourn and I thank Mr. Sami - you will be at the stand again at 2.45. So, thank you.

***** END OF MORNING SESSION *****


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AFTERNOON SESSION Zainur Zakaria Yes, I understand that Mr. Sami El-Haj is not back yet from his prayers, but anyway, we can carry on with the next witness and when he arrives, then we can start the question and answers with Sami. Shall we call then the next victim or witness. Avtaran Singh We’d like to call Jameelah Abbas Hameedi. She’ll be speaking Arabic there’ll be the interpreter there. Jameelah Abbas Hameedi Bismillah ir-Rahman ir-Rahim … (in Arabic) Translator for Jameelah Abbas Hameedi Bismillah ir-Rahman ir-Rahim … My name is Jameelah Abbas Hameedi. I am 54 years old Jameelah Abbas Hameedi (in Arabic) Translator for Jameelah Abbas Hameedi and I live currently in Syria, and I am forced to do so.

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Jameelah Abbas Hameedi (in Arabic) Translator for Jameelah Abbas Hameedi On behalf of me and the other Iraqi female prisoners, I would like to thank Tun Dr. Mahathir Mohamed, his wife, family and nation for the support and concern about Iraqi prisoners and war victims and I believe no nation has been able to do what you are doing.

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Translator for Jameelah Abbas Hameedi (alternating with Jameelah Abbas Hameedi) I was arrested on the night of 13th of January 2004 at 1am. I was with my children at home. I felt there is a very major goal that the American troop have been working to achieve. There were so many helicoptors, tanks, Hummer vehicles which surrounded my house. Seconds after that they opened the doors through bombardment, they bombarded the doors of my house. I came down from the 2nd floor. Suddenly the American soldier pulled me from my hair and pushed me down to the floor. They handcuffed me and I couldn’t feel my arm as it went numb. Usha Kulasegaran Jameelah, could you confirm that these were in fact American soldiers? Jameelah Abbas Hameedi & then Translator for Jameelah Abbas Hameedi Yes. They were all Americans except the translators. Usha Kulasegaran Right. Jameelah, we have before us your Statutory Declaration which is sworn. Can you confirm that this Statutory Declaration has been done by you voluntarily and tendered in? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yeah, she confirms. Usha Kulasegaran And that you confirm all the contents of this Statutory Declaration. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Confirms Usha Kulasegaran You are now on para 8 of the Statutory Declaration interpreter.


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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi And right after that me, my daughter, my son and a female guest that we had at home we also taking the same way I was taken. Matthias Chang Excuse me Mr. Chairman, may I seek your indulgence. (Zainur Zakaria: Yes) Interpreter, she has signed a Statutory Declaration. There are specific paragraphs, you follow me? Can you please ask the witness, listen carefully, to read each and every paragraph first. Later, she can amplify. Because if what she’s saying now differs from the paragraphs, it will create problems. So we will give her all the time to amplify in length later. But first, lead her when the counsel tells you, para 8, you ask her to read para 8. When she’s finish para 8, you translate the thing. And then para 9, para 10 and thereafter. Please follow that procedure. We have explained to you. Thank you Mr. Chairman. Usha Kulasegaran Interpreter, we’ll do it like this. I will read it out, you translate to her. Now we’re at para 8: After about 20 minutes being driven in the Hummer, we were pushed out of the Hummer and I felt the road. I was then dragged on the paved road and after some time I felt the ground change from a paved road to a cemental finish. I was left standing at a wall for some time. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi (indistinct) Usha Kulasegaran Para 9. Then my hood was removed and I saw that I was in a big hall with no windows except for a window in the ceiling and I was then asked 2 questions: My name and date of birth by the American soldier. I asked if my hands could be untied as I was in pain. He refused to untie my hands and I remained standing facing the wall. As the hours went by, I began to realise I was in the Kirkut military airport.

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Usha Kulasegaran Each and every para, interpreter, you have to confirm that she confirms this.

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10, later a hood was placed again on my head and I was dragged to another room. There my hood was removed and I saw another American in civilian clothes with another Arablooking man who spoke Arabic. The American gestured me to sit on a chair. I requested my hands to be untied. The Arab man responded that if I did not stop making this demand, I would be slapped and thrown on the floor. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. She confirms and the Arab-looking man is the translator. Usha Kulasegaran Thank you. 11. The American asked questions that were personal and about my relationship with the Bath party till the day I was detained. He told me that I was accused of being part of the resistance, assisting and funding the resistance. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She confirms. Usha Kulasegaran Thank you. 12. I replied that I’m not part of the resistance and nor am I assisting the resistance and that nothing was found in my house when it was raided and destroyed. The Arab man then slapped me across the face. It was stinging and felt a burning sensation in my eyes and face. The interpreter said that this is just the beginning, if I do not cooperate I will face worse things that no one has seen or heard about. At that time I was more concerned about my daughter and our female guest.


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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Just a clarification. The amount of money that they accused her of paying to the resistance is a huge amount. And they only found 150,000 Iraqi dinars in my house. Usha Kulasegaran Yes. And the amount would be; the amount that she was accused of? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi A huge amount that you can’t imagine. Something like 50,000 American dollars or 100,000 American dollars. Usha Kulasegaran 50,000 to 100 American US dollars. Ok. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes, they accused her of that. Matthias Chang Mr. Interpreter, I’ve instructed you to tell her, “Stick to the word for word in the paragaph”. What she said now was state in para 4 already. I told you to tell her, “Don’t amplify first. Go through that paragraph and all she has to do is confirm ‘Yes’ or ‘No’”. That’s all. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She only wanted to clarify. Usha Kulasegaran Interpreter. Clarification later please. We stick to the Statutory Declaration first. 13. I was hooded again and asked to face the wall and was standing. Some time later, 2 American female soldiers came and removed the hood and took photographs of me like a criminal from my head to my feet.

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Usha Kulasegaran Thank you. 14. I was not allowed to go to the toilet and no drink or food was given to me. 3 days later an American soldier placed the hood on my head and dragged me into the open air. It was very windy and the hood flew off and I saw the rest of my family. I was very emotional as I felt that my family and our female guest were enduring this suffering due to me. My family tried to comfort me.

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Usha Kulasegaran Thank you. 15. I saw an Iraqi interpreter and asked him to look upon me as his mother and to help our female guest by calling her family to inform them where she is. He obliged and took the contact phone number.

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Usha Kulasegaran Thank you. 16. 2 Apache helicopters came with a few American soldiers. My son, nephew and myself were taken in one helicopter and the girls were taken in another helicopter. The helicopter windows and doors were not closed and when we asked for the same to be closed as it was very cold, the soldiers said that this could not be done because to avoid any attack by the resistance - because if the resistance shot at the helicopter, we would be likely to be hit first. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She confirms.


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Usha Kulasegaran Thank you. 17. We were airborne for a few hours and I thought that we were being taken far away, and maybe Guanatanamo Bay. When we landed we did not know where we were. Then our hoods were taken off and we saw American soldiers who appeared surprise to see our condition of wearing light clothing with no shoes. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms Usha Kulasegaran Thank you. 18. I also met my daughter and our female guest at the same place. The girls were placed in a cell together with me. Our hands were untied. I told them that we were not fed for 2 days and we were not allowed to go to the toilet. We were in a tiny wooden cell with no windows. I asked the guard where we were and we were told it was Baghdad airport. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms Usha Kulasegaran Thank you. 19. Shortly within an hour I was hooded and my hands tied again. 2 Americans in civilian attire questioned me. One was a doctor. They asked similar personal questions like in Kirkut about my health. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Confirms Usha Kulasegaran Thank you. 20. I was then taken to an individual wooden cell with no amenities that was about 2 metres by 2 metres. Shortly later, they took me again and placed a hood and tied me again. A woman soldier checked my person for any objects.

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Usha Kulasegaran Thank you. 21. I was feeling dizzy and felt very weak. I asked to sit but they refused to allow me. They asked me to confess that I was part of the resistance and also who my colleagues were in the resistance.

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi And she’s commenting that this was when she was taken to the interrogation room, not in the cell. Usha Kulasegaran When she was taken to the interrogation room. Para 21? Translator for Jameelah Abbas Hameedi Yah. Usha Kulasegaran Thank you. The rest of the para is confirmed?

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi And she’s telling that there were in that room 3 interrogators, 1 interpreter and 2 female soldiers.

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Usha Kulasegaran Repeat please.

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi 3 interrogators, 1 interpreter, and 2 female guards - one black looking and one white. Usha Kulasegaran And they were all in the interrogation room?


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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes.

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Usha Kulasegaran Thank you. 22. I told them that my home was taken over by the Kurd militia for 2 months. The house was returned to me after I had appealed to the Kirkut government. I told them that I had no connection with the resistance.

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms Usha Kulasegaran Thank you. 23. One of the interrogators instructed the female soldier, a black American, to take me to see what I had never seen before. I was then hooded and taken to a room that was all black in colour with some white dots. There were 2 picture of Saddam Hussein with the eyes cut out on both sides of the wall. I was dragged by hair and thrown from wall to wall continuously where the pictures of Saddam Hussein were many times there and I lost consciousness a few times. When I regained consciousness, they played loud sounds in the room that made me disoriented. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She confirms and she’s adding that the room is 3 by 6. Usha Kulasegaran 3 by 6. That’s the addition. Translator for Jameelah Abbas Hameedi And she was pulled, dragged from one hole to the other.

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Translator for Jameelah Abbas Hameedi Yes Usha Kulasegaran Thank you. 24. I was then dragged to another cell and I dropped to the floor as I was very tired. An American soldier came and asked me to stand up. I could not stand for long. And when I leaned on the wall or sat, the soldier would come and hit me with a stick and ask me to stand straight. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She confirms and she adds that there were cameras in the room. Usha Kulasegaran There were cameras in the room. Ok. Allright. Thank you. 25. They threw a bag containing food that I did not recognise and some biscuits along with some water. In the night I heard music and dancing and shouting. Then my cell was opened and a large dog was brought which barked at me, and I was terrified. After awhile, they left and closed the cell door. When the cell door was open, I saw that this was being done to other cells also. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms Usha Kulasegaran Thank you. 26. The 2nd day with my head hooded, I was taken for questioning. I was told that if I did not confess, they would put my other son in prison and then rape my daughter. I said I did not do anything wrong and have no connection with the resistance. I am willing to swear on the Quran or by law. The American said he is the devil himself. I was then taken to the black room by the same black American female and my clothes were removed and asked to sit on my knees and hands. Icy water was poured on me and I was asked to crawl from one side of the wall to the other. A plastic tube with wood inserted in the tube was used to hit me, and I was kicked when


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I dropped on the floor until I started bleeding on my shoulders, back, arms and legs. The interrogator was very cruel and kept doing this for many hours.

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Usha Kulasegaran Thank you. 27. I was then taken to my cell and asked to stand straight again. When I leaned on the wall, I would be beaten. My wounds were not attended to by the soldiers. I cried for an interpreter by hitting the door. The interpreter came and was sad to see my condition. He asked the soldiers why I could not rest and they said that it was part of my punishment. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Confirms Usha Kulasegaran Thank you. 28. I was taken to the black room where my hands were tied and my hair was grabbed and pulled tightly by the same female soldier. I could not take the pain and asked God to take me. In the process my hands became free and I hit the soldier’s face in the struggle. The soldier was very angry and smashed my entire body into the wall. Another soldier came to the room and asked that I be taken back to my cell. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She’s just adding and clarifying on, that her hands became free because of the very intense pain. She managed to take it out and hit the soldier. And she confirms. Usha Kulasegaran Thank you. 29. I was left in the cell for 2 days without any interrogation. On the 3rd day I was taken and hooded, and my hood was removed, and I saw my daughter. My hair was cut short. We were asked to confess again. I felt for my daughter who was a student in the university and should not be facing

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this. I wanted to just agree to anything the Americans wanted me to say to release my daughter, but my daughter gave me strength and said not to do so.

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Translator for Jameelah Abbas Hameedi Thoughts. Feelings. Yes, confirms Usha Kulasegaran Ok. So the rest of the para is confirmed then? Translator for Jameelah Abbas Hameedi Ya. Confirms Usha Kulasegaran Thank you. Para 30. They put hoods on our heads and I heard a bullet shot. I was told my daughter was shot dead. I lost my mind and began to shoot, to shout and felt totally helpless. I was taken back to the cell.

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms. And she adds that the same was told to her daughter.

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Usha Kulasegaran The same was told to her daughter as well. Ok. 31. Later in the same day I was taken to the toilet and saw my daughter in the toilet and I felt a great relief.

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Usha Kulasegaran Thank you. 32. Next I was taken to the black room and my nephew was there naked and I was in my underwear. They said they would beat us until we confess. A black American man was beating my nephew and a black American female was beating me with a tube and kicking me. Loud sound was played and we were beaten by using plastic chairs till the chairs broke. Part of the broken plastic chair pieces got embedded in my feet. This beating went on possibly for some hours. They brought a machine and they said that they machine will be used to harm us. And that after frightening us they laughed and asked me to clean the room. My nephew said he will clean it. They continued to beat my nephew on his private parts. My nephew was kept naked and later he was taken to Abu Gharib in the same condition.

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms. She confirms. And paragraph 32 was one whole day. And the machine mentioned in this paragraph, they threatened them to smash their heads with this machine. Usha Kulasegaran Threatened to smash their heads with this machine. The interrogation continued for one whole day? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. One whole day Usha Kulasegaran Thank you. 33. The Iraqi interpreter informed me the next day my female guest was released. I was taken to another cell and was informed my daughter was released and passed the prayers beads which they said she left me. I was happy but later I found out it was a lie.

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Usha Kulasegaran Thank you. 34. I was away the next day in an Apache helicopter. I asked assistance for my injuries but was refused. I was taken back to Kirkut. There I was taken to a house. I was chained at my feet and my hands.

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms Usha Kulasegaran Thank you. 35. Next day, proper good food was served and I took a piece of bread. But the chief interrogator said, “Stop”, and said, “where are the resistance fighters”? I dropped the bread and said, “I do not know any resistance fighters”. I was slapped and my hands tied at the back and put into a pick-up truck and taken to a large house which was converted to a prison. People there were my friends and colleagues who recognised me and offered me some food by tossing it into my cell. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She’s saying that this was not a large house as mentioned in the paragraph. It was the still in Kirkut in the airport, in large venues in the airport. Usha Kulasegaran It was in the Kirkut airport? Translator for Jameelah Abbas Hameedi In the Kirkut airport Usha Kulasegaran In an area within the vicinity of the Kirkut airport?

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Usha Kulasegaran The rest of the para is confirmed. Thank you. 36. After 3 days, I was taken by Apache helicopter back to Baghdad airport prison and told that my son and nephew was released. Later I found out that this was a lie. I was getting a fever caused by my wounds especially the plastic piece embedded in my feet. A doctor came and said I needed surgery, which was done the next day. The surgery was done without anaesthetic and the plastic was just pulled out of my feet. It was very painful. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes, confirms Usha Kulasegaran Thank you. 37. 2 days later I was taken to Abu Gharib by pick-up truck. In prison, there were a lot of prisoners. I was given a wrist band with a number. I would be called by this number, 157574 and no longer by my name. A hood was place on my head and I entered into a room and was examined by a doctor who said I was seriously injured and needed urgent treatement. But the interrogators refused to treat me. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Confirms Usha Kulasegaran Thank you. 38. In the cell I was given some medicine. No follow-up medicine was given. Food was very bad and the cell was tiny, about 2 by 2 metres. In front of my cell was the bath where men were tortured with cold showers and threatened with dogs. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes, confirms. … inside the cell, this is the cell door. This is the only opening in the … for 6 months I was in … and this is the prayer bead that my daughter left for me after she was released after 35 days in the prison.

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Usha Kulasegaran Thank you. 39. I was not given proper clothing and nothing for my feet. I were asked to join them with promises of better food. They would release me if I cooperate. I said I do not know anything about the resistance. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She’s saying that everything that they were supposed to take like the shoes and the dress they were giving them through exploiting their situation. They were negotiating with them - if you want to take these shoes, you have to work for us, work for our agencies first. And this is what happened to her. And she confirms the rest of the para. Usha Kulasegaran So in addition to that the threats that you mentioned. So the rest of the para is confirmed? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes Usha Kulasegaran Thank you. 40. During winter, cold water was poured in the cell to make the cell very cold. All this aggravated my injuries. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. She confirms and she adds that this happened to all the cells including some cells that had childrens at age 9 to 15.

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Usha Kulasegaran Thank you. 41. When news of the Abu Gharib prison reached the world outside and prisoners began to be released; I was in Abu Gharib for almost 6 months and about 20 days in Kirkut and Baghdad airport.

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Usha Kulasegaran Thank you. 42. The members of the press came one day to see Abu Gharib prison and we raised our voices and the press heard us and realised that there were women in the prison. The press were surprised that women were there when officially they were not supposed to be there. We were later not given proper food because we had alerted the press. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. She confirms and she’s adding that they lied to the whole world and they said that they had no women or children. They had 25 children in that prison. They had women; and when members of the press came they hide these people but when they shouted the press was alerted.

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Usha Kulasegaran Thank you. And the rest of the paragraph’s confirmed then? Translator for Jameelah Abbas Hameedi Yes. Usha Kulasegaran Thank you. 43. In Abu Gharib there was a department for prisoners to complain called the CID. I lodged a complaint about my ill-treatment and situation. Unknown to me, my sister also had lodged a complaint about my detention. Shortly after that, an American committee came and interviewed me. I told them all that I have stated here. The committee acknowledged that I am a war victim. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She confirms that and she’s adding that her sister got to know that she’s in detention after she watched the video show on Al-Arabiya TV. Usha Kulasegaran The para is then confirmed?

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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Ya. And she’s saying her left side was paralysed.

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Usha Kulasegaran Her left side was paralysed. We proceed. 44. About 1 month later I was released on 22nd June 2004. I attach here with the release letter from Abu Gharib marked as exhibit J1. I also attach my ICRC letter confirming my detention and marked as exhibit J2. Interpreter, kindly proceed to show her both J1 and J2 and confirm the exhibits. The first one as the release letter from Abu Gharib and the second one the letter from the ICRC, the International Red Cross Committee.

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Zainur Zakaria Mr. Matthias, do you have a clearer copy of this JI? Usha Kulasegaran We will endeavour to try to get a clearer copy for the Honourable members of this Commission. We will endeavour to do this. Is the para confirmed? Translator for Jameelah Abbas Hameedi Yes, confirmed. Usha Kulasegaran Contents and the exhibits J1 and J2? Translator for Jameelah Abbas Hameedi Yes. Confirmed. Usha Kulasegaran Thank you. 45. Till today, I endure physical suffering due to my beatings and condition in which I was detained. I am unable to move my left leg freely and cannot support myself on my own. My left arm is also affected in that I am unable to use it like I used to, and I suffer aches. I am also unable to wear shoes that cover my feet due to my injuries. I cannot endure cold climate or very cold air-conditioning. My injuries to my lower back need further treatment but I am unable to afford the cost of the surgery.


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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. She confirms

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Usha Kulasegaran Thank you. The last para. 46. I am one of the many who have suffered as war victims. I have seen much suffering. Women have suffered tremendously and many have been raped.

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Usha Kulasegaran Thank you. We’ve come to the end of the Statutory Declaration. Jameelah is now free to elaborate, briefly. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi I would like to add that whatever I saw in the exhibition just now, outside, is just a drop in the sea of situation. When I entered the prison I was shocked and I thought it was the day of resurrection. And I told people suffering and shouting, “Patience”. I saw the worst of crimes against humanity which can never happen any place on earth. These picture, the other picture that are not shown, are a shame for humanity, especially the pictures of children. 9 years old children, up to 17 years old children kept in a very small cell which cannot even be used as restrooms. The children that are supposed to cry for potato chips and Nestle products are spending their lives in those cells. All of those children in that prison have no accusation at all. The only accusation was that their parents were having human rights centre or something related to that; and sometimes the children would be arrested only because they frown at the faces of the American soldiers, or they did not show them a smile. She’s saying that 2 American judges, 2 female American judges retired or resigned because of these actions that are taking place. The woman is definitely different from man. But they torture women more than they torture man. And they torture

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children more than they torture men. You feel that those interrogators are full of anger and hatred and they pour their hatred on us during interrogation.

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If any of you see the bathroom in Abu Gharib, or the pool in Abu Gharib, which is supposed to be for swimming or showers, if you see it, it’s like a place of slaughter. Who can uphold the rights of these innocents. About ¾ of the prisoners in Abu Gharib have no accusation at all. And when I was released, they told me, “Sorry, you are a war victim”. What can sorry do for me? They destroyed the whole family - not the family, they destroyed many big Iraqi families - and in the name of humanity we are asking you to prosecute these criminals.

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Again I say thank you to Tun Dr Mahathir, his wife and his nation for this opportunity which you give us; and I now ask you if you have any questions. Usha Kulasegaran Thank you Jameelah. I hand over to the commissioners in case they have any questions. Thank you. Zainur Zakaria We shall proceed to clarifications from the commissioners; and after that then we go back to Sami El-Haj. So, we’ll finish with this victim first. Matthias Chang Mr. Chairman, can I make a request? Mr. Sami has given his evidence. Can we have a … last … with all the other witness …? Cause time is very short. Zainur Zakaria I think it’s the same, isn’t it? We go on with this victim first, then we can continue with Sami later. Matthias Chang As … sir.


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Zainur Zakaria I’ll make sure the commissioners will ask many questions. Who wants to start?

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Zainur Zakaria Sorry. We are not taking questions from the floor. We are not receiving any questions from the floor at this moment. It is only from the Commissioners. Dennis J. Halliday Madam Jameelah Abbas. Thank you for your testimony about yourself, your daughter and your nephew. We understand that your testimony must be extremely painful for you. We are full of sympathy and respect for your courage and dignity. In paragraph 16, you made reference to travelling in the Apache helicopter from Kirkut to Bhagdad. You mentioned that you were placed in front of the doors of the open, of the helicopter and were cold. So my question is was this just part of the American punishment and cruelty; or did you feel that you were placed in front of these open doors, as the soldiers indicated, to protect the soldiers from being fired upon by the resistance movement? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi She asked the American soldier why are the doors and the windows open? The soldier answered, usually they put 3 people on each door of the helicopter, the 2 doors, and soldier answered that they are protecting themselves from the attacks of the Iraqi fighters. She’s adding that the distance between Kirkut and Bhagdad in the Apache is supposed to take 2 hours but it took them about 5 hours because they were trying to avoid the attacks of the resistance fighters. Dennis J. Halliday Thank you very much. I just raised the issue because it looks like a deliberate case of protecting military troops by placing

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civilians in danger to be a violation of Geneva Conventions, I believe. Hans-Christof von Sponeck We have noted, in the commission, here Mrs. Jameelah Abbas Hameedi another case of an attempt to force out of you a confession. The previous witnesses have indicated a similar approach. This is just for the record, I’m saying that; but I would like to ask Mrs. Abbas Hameedi: How many times did the interrogators try to force out of you a confession? Was all of that related to the resistance issue or were there also other items on which you were supposed to confess? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi For the interrogators they don’t really care how long, how many times they will interrogate because they are part of the system, the intelligence system. They would use any way to get the information from the detainee. You feel that the interrogators are working for intelligence, collecting information about the resistance, Al-Bath, the army and many many other … For example, I was beaten up for 3 continuous days to confess on a friend, Huda Saleh Mahdi Ammash, although that Huda is imprisoned as well in the airport, and Huda is with them as well, so they can get any information from her, but they still interrogated Jameelah for that. 3 days beaten up to get information about Huda. Hans-Christof von Sponeck Are you talking about Dr. Huda Ammash? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes. Dr. Huda Ammash. Hans-Christof von Sponeck I have 2 additional small points. Unfortunately your children were also involved in the incarceration. What can you tell us about how they were interrogated?


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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi My children arrived with me at the airport as well and they were treated the same way I was treated. My son is 18 years old. Daughter is 22 years old. My nephew was very new in Kirkut. He spent only 2 days in Kirkut. Nevertheless he was beaten up and they were all beaten up the same way I was beaten to confess about their mum, that she worked with the resistance, that she financed the resistance. My children were released 35 days later after they were arrested, but my nephew spent the same period I spent in the prison, and we were released together. Hans-Christof von Sponeck Thank you. I just have one additional point. The commission of course, wants to not doubt the truth that you are speaking. But we want to have enough hard evidence as possible. For that reason I would ask you, as I’ve asked others, whether there would be any witnesses who could corroborate what you have told us, for example, the way you were treated in the black room. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi I have hundreds of witnesses who can witness that I was detained and tortured. My story was very well known in the prison because of the inhumane torture I endured. There were prisoners from Yala, Anbar, Samrrah and there were about 900 from ‌ and we are all witnesses for each other. Hans-Christof von Sponeck Thank you. Zainur Zakaria Anybody else? Michel Chossudovsky Mrs. Jameelah Abbas Hameedi, we share your grief. I wanted to ask one technical question but which I think is of substance. I noticed that in the 2nd exhibit, J2, there is a statement by the International Committee of the Red Cross, Geneva and you

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were arrested by coalition forces on the 13th of January 2004, but it was only 2 months later that the International Committee of the Red Cross registered and visited you in Abu Gharib. I believe that the International Committee of the Red Cross has statutory obligations and so do the occupation forces. Did you request to see members of the International Committee of the Red Cross upon your detention? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi The ICRC visited me only once. We wrote our address and they asked for a phone number for contacts of relatives, but all of the prisoners were very afraid to write anything in the letters they asked them to write because afterwards it can go to the American troops and will be kept in their record, in the American record. After we were released, we got the most important letter, and this letter was released only after I was released from prison. So we wrote it on, as early on the 13th of January or 2 months after that but the letter reached outside the prison only after we were released. Michel Chossudovsky Was there indication on your part that the prison officials and interrogators were encroaching upon the activities of the International Committee of the Red Cross under its obligations under the Geneva Convention? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Of course yes. I have a sister who visited us from Switzerland and told us how much she suffered until she managed to reach us. She was very sad for our situation because we were without clothes or shoes or anything. She tried to help us but she couldn’t. Not only the ICRC. Other human rights groups also could not help us much because their activities were not facilitated by American troops.


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Michel Chossudovsky Is it a correct statement to say that the International Committed of the Red Cross and other humanitarian organizations were prevented to fulfil their obligations under international law by prison officials? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Yes Michel Chossudovsky With regard to the interrogators, do you have any indication as to who was setting the pattern of interrogation and who was giving the orders? Whether the orders were coming from higher up? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi We don’t know because there were so many committees interrogating us the intelligence, the American soldiers and we can’t really recognise who was interrogating us. Zulaiha Ismail Could I then ask. You mentioned that an American committee came to interview you and acknowledged the fact that you are a war victim. Can you clarify a little bit about this American committee - was it part of the Red Cross, was it part of the military? Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi This committee was from the American troops. I insisted me and my friend who lost her brother during interrogation, he was tortured to death, I insisted me and her that we should record everything that happened with us in Abu Gharib so that it is not missed out. I wrote 30 pages in Arabic, and it was translated into English because Americans lie by nature, because I am released, like now, I am talking to you, some people might not believe me, but I insisted to record my case in that trial in prison. Because now we had numbers during the time in the prison and now if you go to the computers

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that they used to record our cases then, you can just key in my serial number and get the record of the report that I lodged during that time. And I did that for history and for the next … that Iraqi women are able to resist and do something for the nation.

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Zainur Zakaria Mr. Interpreter, I think confine to the clarification sought by members of the commission, otherwise she’ll be going on and on on some of these new, whatever it is

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Matthias Chang Mr. Chairman, I think it is unfair to ask whether she’s a war victim, it’s a matter of submission Zainur Zakaria Yes I agree. Matthias Chang And whether she is a war victim, obviously a war victim because she’s a result of the war. But I think what we’re interested here in this moment is for her to testify as to how she suffered in Zainur Zakaria Mr. Matthias, we are concerned with evidence. I think members of the commission should not be asking her hypothetical questions or theoratical questions or asking her to verify certain chains of commands and orders, because she will not be in a position - evidence of what she underwent as a victim of torture, that’s all we should confine ourselves to at the moment. Gurdial Nijar One quick question. I just want to know, for purposes of deciding on deciding on complicity later on. Did the then Iraqi government know of what was happening to you and did they at any time then or thereafter do anything to seek a remedy on your behalf?


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Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi First of all, our government is just following the Americans. Hamid who was an MP visited us. He visited Abu Gharib, and he visited us the women. All the women in the detaining camp took off their shoes and throw it to the Iraqi MP who visited them, and I told them, “Shame on you. You are sitting in those seats and we are suffering”. And he could not resist that situation. He left. Zainur Zakaria I think the last question from one of the commissioners. Musa Ismail Mrs. Jameelah, look at your last statement. Statement 46. You said: I am one of the many who have suffered as war victims. We could accept that. I have seen much suffering. We could accept that. Women have suffered tremendously. We could could accept that as are meant. But the last one: And many have been raped. This is quite a sweeping statement to ask, but I give you a chance to explain, whether is it the general stories among Iraqis or the victims of rapes have told you that they have been raped? Just let us know this. Thank you. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi As for the issue of rape, 2 detainees, 2 sisters who were detained were raped when they were about to leave Abu Gharib and once they were leaving Abu Gharib the 2 sisters who were raped, since we are conservative people and people who have civilisation, the father took his 2 daughters and married them. He did that out of shame. He was afraid of shame. A friend of mine, I don’t want to mention her name now, was also raped. She could not talk for about 6 months after this happened to her. And when she was released, 6 months after that she was released, she confessed what

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happened to her to a TV channel and right after that she committed suicide. Matthias Chang Mr. Chairman, can I just interject here for a moment. I think that we must emphatise and understand the culture of Muslim in the Middle East; for them to say in explicit terms such horrible crimes as rape, molestation and what have you. I think there is no necessity to seek corroboration at this hearing because we have tendered so much documents, official documents like the criminal report; which says that woman has been raped and raped and raped. These are official documents from the very sources of the US government. So I think we need corroboration, independent corroboration from all those reports; and I don’t think I … for this witness Zainur Zakaria Apparently that’s the last question Matthias. We can next go on, we can go on with the next victim. I think that’s all we need to hear … yes. I wish to thank Jameelah Abbas Hameedi for having the courage to come forward and provide a testimony for our consideration. Thank you. Jameelah Abbas Hameedi and then Translator for Jameelah Abbas Hameedi Thank you so much

Zainur Zakaria Er, yes. Mr. Sami El-Haj. Hans-Christof von Sponeck Mr. Sami El-Haj, from what you have told us, you were more than once told that you were a victim of a mistaken identity and that you would be released soon. Well, soon 6½ years is not soon to me. And then suddenly you were released. I would like to know, I’m very anxious as a commissioner that we do consider the issue of redress. What kind of a redress has come you way? Either from your employer Al-Jazeera or from CNN,


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after all CNN has witnessed; you were part of a team that consisted of Al-Jazeera and CNN - but I would like to know what kind of redress process is now underway or is there nothing? And if there’s nothing, why is there nothing? Sami El-Haj (in Arabic) and Translation for Sami El-Haj As for what you mentioned, about me spending 6½ years, although they confess that I was imprisoned by mistake, I believe the American administration does not want people to go out of Guantanamo Bay and talk to the world about what they suffered in that prison. But when the pressure on the American administration increased from Al-Jazeera, from other human rights groups, they decided to release me. Hans-Christof von Sponeck Could you repeat? I did not understand that. Sami El-Haj (in Arabic) and Translation for Sami El-Haj When the pressure increased on American administration from Al-Jazeera channel and other human rights organizations only then American administration decided to release me from prison. Mohd. Akram Shair Mohamed Have you been compensated? The question was have you been given anything for you 6 years imprisonment. Have you been compensated some monetary form or some other form? Sami El-Haj (in English) The American doesn’t charge me and doesn’t say for me we are wrong and they doesn’t say for me anything. But I respect my channel Al-Jazeera and the other people who like other people who work in media and other people who work in human right, and also I respect the lawyer who defends my case and also I respect many American people who are against our detainees. Michel Chossudovsky Mr. Sami El-Haj, we are aware of the tremendous courage that you have exhibited in your presentation. I wanted to focus on something again which I think is crucial and quite

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specific. Your position is different to many other detainees who were kidnapped and picked up and who were civilians. You were exercising your profession as a journalist in the war theatre. You were, if I understand correctly, were not what the mainstream media and the military called ‘embedded’. You were there to seek the truth and establish the facts of what was happening. My question is: Was there any indication on your part during your detention or during interrogations that you were being held and detained with a view to suppressing the role that you performed as a media reporter committed to honest journalism, was that the consideration? Because there have been many journalist who have been targetted and we’ve documented those, but this in a sense is a rather particular case and I’d like your opinion on this matter. Sami El-Haj (in English) On November 2001, American destroyed our office, Al-Jazeera office in Kabul. In 2003 … American killed our correspondent in Bhagdad … and our correspondent … now arrested in Spania … USA … the administration of USA. And USA before 2 months they asked our managers of Al-Jazeera to open a new page with Al-Jazeera. That saying American doesn’t like Al-Jazeera I mean the government of America. I don’t mean the people of America. And I think, but I believe that the administration of Bush they doesn’t want the people know the fact, the truth. They doesn’t want to show how they kill the innocent people, how they kill the children in Afghanistan and in Iraq and other place. For this reason, they doesn’t like Al-Jazeera. And I think you hear that Bush he talk to Tony Blair in London that he think to bombing Al-Jazeera, the main station in Doha. Michel Chossudovsky In fact was seeking a more precise answer to the question. Matthias Chang Excuse me Mr. Chairman, can I interject here, if I may. It is established legal principle that only an expert can give opinion evidence. An ordinary witness cannot proffer opinion


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evidence. This, if at all, that line, if we want to establish that conclusion, it is for legal counsel, for the prosecution … to other evidence which we tendered before the Tribunal. At this stage, the purpose of this witness and all the other witness here is to testify how they were tortured. Nothing more, nothing less. It is unfair, I’m not trying to say to Professor which is unfair, but the legal procedure is such that we don’t pose these questions to a witness. Correct me if I’m wrong. Zainur Zakaria Yes, Mr. Matthias. I do appreciate your point. I’ve been trying to make that point to my commissioners also. In asking or seeking clarification please confine yourself to the evidence and more specifically to what has been said in the Statutory Declaration because I think if you are seeking opinions from the witnesses, it’s going to delay the proceedings, for one, and I don’t think they are in position, in most cases, to come up with an opinion of course. If they were to give opinion it is not evidence for us to consider in our report to the prosecution team. So may I request the commissioners to confine the questions to matters of facts or evidence arising from Statutory Declarations of the victims. Michel Chossudovsky Mr. Chairman, this is a matter of fact because what I would like to establish through this question is whether the interrogators and the torturers had any particular treatment because Mr. Sami is a journalist, and because he is a journalist associated with the independent media. That is very important. Now if he had been associated with the BBC or CNN, maybe the treatment would have been different. But that is the question. It is very concrete. It’s the evidence from you, it’s the record of your pains and sufferings that you have experience, was that in any way related to the fact that you were there to convey the truth once you were released through the channels of network television and printed press.

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Zainur Zakaria I’ll allow that question and I hope Mr. Sami can answer whatever it is. It is going to be the opinion, I think, from his own perception of things. Matthias Chang Mr. Chairman, in earlier part of his testimony, he already said that one of the condition for his release was whether he would tell the truth. And he said to the torturers if he’s released, he will tell the truth. Zainur Zakaria Mr. Matthias, let him just answer the question, whether in his opinion, and I’ll stop there. Sami El-Haj My opinion: The USA arrested me because I am journalist and because I am working with Al-Jazeera and because I tell the truth what happen in Afghanistan. Zainur Zakaria Thank you. Michel Chossudovsky Regarding your release after 6½ years, was that also related to Sami El-Haj To the pressure of Al-Jazeera. And other. Dennis J. Halliday Mr. Sami El-Haj, I have one simple and probably naïve question. In paragraph 21 you described in some detail the pain and discomfort and danger and lack of hygiene and forced feeding. I want you to, my question is simply, that’s why it’s perhaps naïve. Was there any American medical person there to witness and to ensure you were not damaged by this process?


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Sami El-Haj I think you talk about the hungry strike and how they feed us.

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Dennis J. Halliday That’s right

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Sami El-Haj Yes, they took us from our cell, 2 guards and put us in chair brought it specially for the hungry strike people. And then they … us more than 14 or 15, with the shackles. And then the nurse who feed us are doctors and nurse. They put the tube through, the send the tube through our nose, and they do it hard until sometime doesn’t go into our stomach, they go into our lungs Dennis J. Halliday I understand. Sami, you’ve answered my question. What you’ve just said is the doctor and the medical nurse, … in violation of their own oath I would say. Well thank you very much. Zainur Zakaria Well, since there’s no other questions from any of the commissioners, we thank you Mr. Sami. And can we now proceed to the next victim?

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… Can we first deal with the testimony of Salam Fanar Zabin?

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Matthias Chang We have reason to ask the expert to go first. Zainur Zakaria Allright.

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Souad Naji Al-Azzawi Ladies and gentlemen, commissioner of Kuala Lumpur War Crimes, I am Dr. Souad Naji Al-Azzawi. I am Iraqi citizen, of full age and citizen of Iraqi hereby solemly and sincerely declare the following. I am an Associate Professor in Environmental Engineering. Also I’m a Consultant for Scientific Affairs in private universities in Iraq and Syria. I currently live in Mosul Iraq and have a part-time job in Aleppo, Syria. The purpose of making this declaration is to put on record that there, of the intentional use of depleted uranium weapons and the other banned weapons till today by the United States of America, and the United Kingdom. It’s a crime against humanity because it targets not only the armies of the 2 countries but also the civilians for decades to come due to their radioactive contamination that will be continuously present after the military engagement. Depleted uranium is a radioactive material and can be toxic heavy metal. If ingested, inhaled or enters the human body through one’s skin, it remains there for decades. Laboratory studies and scientific evidences prove the link and the causal relationship between exposure to depleted uranium and the increased risk of inducing neural-degenerative diseases, immune and hormonal system damages; initiation and promotion of cancer, tetratogenic toxicity, due to its toxicity which causes mental retardation and congenital malformation, miscarriages and sterility. The medical research by a very well-known epidemiologic in low-level radiation, Dr. Rosalie Bertell, research showed that how the internal exposure of depleted uranium is more dangerous than external exposure to radioactive material because it generates free radical within the human body. Excessive free radicals will attack the anti-oxidants within the human body and create total oxidative stress. This stress causes failure to protective enzymes leaving cells of the human body vulnarable to viruses. Free radicals can also totally disrupt the folding process and manufacturing of the molecule proteins which is sequenced by the DNA and manufactured by the RNA.


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Some of the diseases resulted from misrouted proteins include cyctic fibrosis, diabetes and cancer. The research also by Dr. Alexandra C Miller and her team, and she is working in the army laboratories approved in 2005 that the depleted uranium causes malformation of foetuses and attacks the immune systems of laboratory animals and causes sterility specifically in males. 7. A crime is committed against the people of Iraq wherein thousands have been dying and continuing to die from cancer and other diseases of course, the contamination is on government process. There was a six-fold increase in congenital malformation since 1991 during First Gulf One. During this period, Basra city was the site of contamination of depleted uranium in Iraq. In 2003, or during the invasion, this contamination extended to other cities like Bhagdad, Fallujah, Samawa, and other regions, Diwani(?) and other region during the invasion process. 8. During and after the invasion in 2003, the invading forces also used other illegal weapons like napalm, white phosphorus, cluster bombs, besides depleted uranium. The use of these banned and illegal weapons defies the conventions of international community which have prohibited the use of these weapons. The Hague and Geneva Conventions and its protocol and subsequent treaties clearly declare that weapons which cannot discriminate between civilians and military or combatants are prohibited from not only use but also from manufacture and sale. 9. In 2007 and 2008, the Environmental Minister of Iraq admitted that Iraq is going through a cancer epidemic and called upon the international community to help Iraq to clean the environment and to offer medical care for the Iraqi people. The Iraqi minister also declared that there are about 300 sites contaminated with depleted uranium. The United States of America and United Kingdom are forces used depleted

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uranium ammunation for the first time in history during the Gulf War of 1991. About 1 million bullets, or 320 tonnes of depleted uranium were used from the highway of death, they call it, from Kuwait to Basra, then up to Nasri and other Iraqi cities. 11. Spreading and dispersion of depleted uranium contamintation to surrounding areas also occurred through wind storm, dust storm, sand storm and rain storm. Published data indicated significant increase and the frequency of any one dust storms in Iraq both and Kuwait for first 18 months of 2009 witnessed about 20 dust storms as declared by Iraqi Ministry of Health. 12. After 18 years, Kuwait required US Department of Defence to remove the depleted uranium contamination wreckage from their land. Over 6,700 tonnes of contaminated soil, sand and residues were collected and shipped back to USA for burial in Idaho and America ecology at bio site. The United State admistration and the Pentagon officials still insists that DU has no significant health hazard, yet they ship back their dirty radioactive wreckage home back to America from Kuwait. 13. The Court in Florence Italy made a decision on 13 January 2009 ordering the Italian Ministry of Defence to compensate one of the Italian soldiers Marica with around 500 Euros(sic) as he was a parachutist who was deployed in Somalia for 8 months in 1993. This decision is very important because it is stated that causal link between the presence of the depleted uranium and the illness, or the cancer of the soldier. The Court’s statement includes a report of technical consultant who maintains that there is a causal link between Hodgskins lymphoma developed by the soldier and the exposure to depleted uranium. 14. However, uranium radiation hazards are covered up and mispresented through the obsolete model of risks and derived standards of allowable exposure set by International Commission on Radiological Protection, ICRP. This model was derived from invalid assumptions due to secrecy and


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cover-up about the health effects of Hiroshima and Nagasaki bombs at the time around the Cold War and the development of nuclear power and weapon.

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15. The ICRP risk model was built from studies of the atomic bomb survivors which overlooked the effect from internal radiation source and ignored cancer, that in some cases, take decades to appear. It was certainly developed before the DNA and the human genome knowledge existed the way it is now.

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16. International intentional denial and refusal of the United States and United Kingdom administration to release information about these … locations and amount of depleted uranium weapons that have been used against Iraq have caused additional radioactive doses that’s been received by the population of Iraq and have damages to the people in contaminated areas. Both administration should be held responsible for this crime. The drastic increase of cancer incidences in Iraq since 1995 to date and the DU related diseases like congenital malformations, miscarriages, etc defects, you’ve seen the deformed and defect kids in the exhibition of this conference are all atrributed to the use of prohibited weapons included depleted uranium. 18. Depleted uranium contaminated area all over Iraq are continuous source of radioactive pollution. Without cleaning and other measures, the suspension of these contaminants with each dust and sand storm can be considered as a systematic attacks by the US and UK armies on civilians in an armed conflict. 19. A copy of my paper on this matter stated above is attached exhibit SA-1. This is a crime against humanity … undiferentiated harm from health impact on civilians for a long time to come after the military operations have been conducted. And I am making this solemn declaration consciously believing the same to be true and by virtue of provision of the Statutory Declaration Act of 1960.

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I have, if you allow me, some extra useful information, a few of them, if you may, Chairman of the Commission. Can I read a few more points out of my declaration? Zainur Zakaria The declaration? Souad Naji Al-Azzawi Yea. This is some more useful information. Zainur Zakaria We have your report, your expert report. I think I would now invite members of the commission if they wish to seek any clarification. Dennis J. Halliday Dr. Souad, thank you very much for your brilliant presentation. It’s an exposure of DU and its use, which I’ve never seen so thorough a job before. I hope we can use it world-wide in due course. In paragraph 10 you refer to the Gulf War of 1991, in fact that depleted uranium was used exensively and used for the first time in human history. And I just want to note for the record that the war of 1991 was the war of the United Nations, the Security Council Souad Naji Al-Azzawi That’s what they claimed Dennis J. Halliday Approved by the United Nations under Chapter 7, Article 42 of the Charter of the United Nations. Souad Naji Al-Azzawi But the one, excuse me and please Dennis J. Halliday And the record should note that the atrocities, the road of death and the DU usage was approved and authorised presumably and committed in the name of the United Nations. Thank you very much.


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Souad Naji Al-Azzawi Thank you very much. Well, the armies practically who used the DU from all other armies were the United States and the United Kingdom, that’s why we insist on pointing that to them because practically the United States of America is the first one who manufactured the depleted uranium weapons. They converted the radioactive waste, of, enrichment of spent fuel to bullets and weapons instead of, you know, just spending this much money on USA to protect USA population from these radioactive materials. They converted them to harmful contiminating radioactive bullets and projectiles and used them against other parts of the world and sold them to other parts of the world. So it’s a very, you know, very specific. Zainur Zakaria Thank you Dr. Souad. Now, who else would like to ask any question? Gurdial Nijar Dr., thank you very much for your testimony. Very quickly. You talked about the invalid assumptions due to secrecy and cover-up. There were subsequently, to my knowledge, joint undertakings between the Japanese and the Americans they had a series of reports under the, you may know the BEER reports, the varticle(?) effects of internal radiation. And they tried to cover up. And at one stage, the Chairman, I think it was BEER 4 committee, resigned in protest because he wanted to include the actual effects and they refused to do it because of political interference Souad Naji Al-Azzawi Recently. This is recently. Gurdial Nijar No. Some time ago when he resigned. But since then there has been clearly proven that there is a clear lineal link between low-level radiation and the effects, there is no threshold in other words. Could you just confirm this fact for us so that we could also have it in our

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Souad Naji Al-Azzawi There are many models of the effects of radiation. Some of the models, the threshold ones explain that some of the radiations are useful to the human body, and they always take the case of cancer, you know, treatment. But in fact, for a healthy human body, any dose of radiation is harmful. So this is the 2nd model. What’s been going on in Japan, the Hiroshima victims, they are practically emphasise only the external exposure. They wouldn’t take into consideration the internal exposure because is they do, instead of 140,000 victims it would probably be like probably about 1 million victims because the internal exposure would appear few years later on with congenital malformation, defects, sterility, miscarriages and practically they didn’t want that. They only wanted the problem only when the atomic bomb exploded and the people get radiated directly externally. So that’s why they’ve been insisting that this model, the International Commission Radiation Protection model which was created long time ago, 60s and 70s, is perfect model to measure the effects on human body, and this is an obsolete model after the discovery of the human genome and chromosome … that is created by the internal doses of uranium and depleted uranium. Hans-Christof von Sponeck Listening to Dr. Souad, comes to mind what is maybe important for us to note in the commission that in the years 1999, 2000, 2001 there were repeated efforts by World Health Organization to send a mission to Iraq and this mission was identified, I knew the persons, and I have first-hand information that allows me to conclude that there was continuous pressure by the United States government to prevent a UN agency, the World Health Organization, from sending a delegation to Basra to look into the effects of the U pollution. I think we should note that and maybe try to follow up in obtaining evidence from the World Health Organization. Souad Naji Al-Azzawi Practically if you allow me to answer, this is very much true. The UNDP and the World Health Organization, I have papers,


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published papers by colleagues of mine. They were prohibited from entering Iraq to do and this is another crime. Because exposing the people during the engagement is something, and not identifying the places of these contaminants is another crime because these contaminants were spreading to larger areas in a state of 250,000 km square we have 5000. We have, with time, these contaminant, land and vegetation cover and extra is giving the people more doses within their human body and causing more defects. So we have, in my opinion then, not only a cover up of not releasing the information; also prohibiting the organization from doing an exploration programme like the one done in Kosovo and you know, should be this way. So until now they wouldn’t allow any international group or organization to explore the contamination in Iraq. This is a 3rd crime, ok. Thank you. Dennis J. Halliday Dr. Souad, just to add to Hans von Sponeck’s question. Can you also confirm, or otherwise, that during the long period of 1991 to 2000-2001 referred to by Hans von Sponeck, the WHO made no attempt to investigate or clean up the DU contamination extensive in the south of the country? Souad Naji Al-Azzawi Yes, they tried one time after Iraqi government submitted a report to the United Nations with measurement that prove and we have all those measurements, and the United Nations at the time suggested that related agencies should put an effort to investigate that matter and I have a paper by one of the WHO organization, he resigned, like yourself, Mr. Halliday, but I can’t recall the name now. He resigned because, and he announced that, they are pressured not to enter Iraq and not to do this investigation. Yes, 1998 or 1999, and I can give you the published information about the subject. Dennis J. Halliday I personally tried to get into the country in 1997, but since then, that’s 10 years ago, more than 10 years ago, can you tell us now if the WHO has finally tested DU contamination anywhere, doesn’t have to be Iraq.

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Souad Naji Al-Azzawi The problem not only in Iraq the WHO and other international agency wouldn’t touch this subject under pressure of the occupation. And also, even the Iraqi government wouldn’t allow any statistics of the people who are, you know, they have cancer or related diseases due to depleted uranium. So, there has been very much destroying of all evidences except for a few research we have done in Basra during the 90s. And they killed some of the professors who conducted this, and they detained Dr. Huda Ammash. So that’s one of the problem. They wouldn’t like the how huge the problem of contamination in Iraq and the genocide in my opinion is still going on. Dennis J. Halliday Dr. Souad, what you’re saying, and what I’m saying, and I won’t put words in your mouth; but what I’m saying is that the United Nations Security Council is complicit in the sanctions, regime and the loss of life, complicit in the 1991 war before that and the use of depleted uranium and the World Health Organization is complicit in the cover-up and the failure to investigate … depleted uranium. Souad Naji Al-Azzawi Yes, certainly. Because in my opinion, the sanction with exposing Iraq to depleted uranium is, it work in an energetic way, because the human body will resist the initiation of cancer and other diseases if it is healthy human being. But the problem with the sanction - no food, no fresh vegetable, nothing, no vitamins - the problem will triple or even more because in 1998 we discovered that 6-fold increase of congenital malformations and 4-fold increase than before 1991 which is very fast. That was amazing. The problem is not only exposing the people, the population of Iraq to depleted uranium, you know, internal and external exposure, continuous source of exposure and depriving the population from necessity to resist these - it’s really a triple crime. I’m sorry, I get very much emotional with this issue.


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Dennis J. Halliday That’s ok. Thank you very much. Souad Naji Al-Azzawi You’re welcome. Hans-Christof von Sponeck Your indulgence please. Also the lead counsel, I hope, bears with me. I have to add here that as a war crimes commission, trying to get as much evidence about war crimes committed, I think it’s important that we record in the proceedings here the fact that in March of next year, Iraq will be the country to be reported on in terms of human rights over the last few years. There is no human rights rapporteur right now. The UN has not appointed such a person. I think it’s time in preparation for this country review in March 2010 that we, through the Commission, make an attempt to encourage the World Health Organization to address this subject, and I would like as Commissioner with other hats that I have to raise this issue to make sure that it’s included in the review of the March 2010 Iraq report that is under preparation now by the United Nations’ Human Rights Council in Geneva. Zainur Zakaria Well, I think there’s no other question, clarification sought, so I would like to thank you Dr. Souad and also for the excellent report you have prepared and I would like the legal team to invite the next victim. I believe Salam Fanar Zabin.

Usha Kulasegaran Yes, next witness is Mr. Salam Fanar Zabin. I invite you to take the witness stand. We need the interpreter please. Salam Fanar Zabin and then Translator for Salam Fanar Zabin … I live now in Syria. First of all I would like to thank Tun Dr. Mahathir for giving the opportunity through this activity

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to talk about the issue of the Iraqi prisoners and to show the dark side of the American invasion.

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I was 17 years old when my house was raided in Jihad in Baghdad. Our house was attacked on the 19th of October 2003.

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Usha Kulasegaran Yes, before this, interpreter. I refer you Mr. Salam, to the Statutory Declaration before you, SD5. First of all, confirm that that is your statutory declaration. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes.

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Usha Kulasegaran Thank you. Confirm that you have voluntarily signed the statutory declaration and that you confirm the contents of the statutory declaration.

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Usha Kulasegaran Yes. Thank you. For purposes of ease of reference to the commissioners, we will now follow the following procedure. I will take you para by para, and that will be interpreted by the interpreter. Para 1. I am 24 years old. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran I now live in Damascus, Syria. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes

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Usha Kulasegaran 3. The purpose of making this declaration is to put on record my torture in the Bhagdad airport prison for 7 days and Saladdin for 3 days, and in Abu Gharib prison for 6 months. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 4. I was 17 years old when I was detained on 19th October 2003 in my home at the Al Jehad area near the Bhagdad airport at midnight. I was at home with my father and the electricity supply to the whole area was cut off when there was a huge blast and the American soldiers broke into the house. My father is disabled with artificial legs. Both of us were taken in a tank to Bhagdad airport. We were put in separate cells. The cell was 1他 by 2 metres. A hood was placed on my head and I was forced to sit on my knees in the middle of the cell. After some hours later, I was taken for questioning. I was not told why I was detained. Later, I was given a form to fill and in the form it was written I was accused as being part of the resistance. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes. Confirm. Usha Kulasegaran Thank you. 5. In another room there were 2 Americans in civilian clothes and another person who spoke in Arabic. I was asked where is Saddam Hussein and the weapons of mass destruction, and who is behind the resistance. I said I do not know anything as I was only 17 years old at that time. They threatened that if I did not tell them any information, they would send my father to Guantanamo Bay. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes. Confirms. Usha Kulasegaran Thank you. 6. The interrogator then ordered I be taken to the black room where I was tied and my head was hit against the

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corner of the walls. My clothes were torn, and I was in my underwear. My hands were tied and I was forced to crawl on my elbows and knees on the wet slippery cold floor covered with ice cubes and soap. My elbows and arms started to bleed. I also heard screaming and crying of other prisoners. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes. Confirms.

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Usha Kulasegaran Thank you. 7. My hood was lifted and ice cubes were shoved into the hood and I was shoved onto the ground. I was then hit by a stick and kicked by the boots of the soldiers on both sides of my body. I could feel blood was flowing out of my wounds. After awhile, I could not feel anything due to the pain and the ice cubes on my head which made me feel numb. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes. Confirms. Usha Kulasegaran Thank you. 8. I was taken back to my cell and my hood was removed, and I saw my chest hair was removed and I was bleeding profusely. I was hurt all over my body. The cell had no roof with a cement floor and a plastic covering and I felt very cold as the cold outside air was coming into the cell. I had no clothes on except my pants. I had no amenities in the cell. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes. Confirms. Usha Kulasegaran Thank you. 9. I was not given food and was only given some water for the 3 days I was in my cell. I was repeatedly questioned about my personal background. I was also asked again where is Saddam Hussein and the weapons of mass destruction. A food bag was thrown in my cell everyday and before I could take the bag, the cell door would be opened and the bag would be removed. All the time, I was verbally abused.


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Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 10. I was then taken to Saladdin prison by helicopter and I was still in my short pants and a hood was placed over my head. In the helicopter, I was asked to squat with the door opened for the duration of the flight. This was done so as if there was any attack on the helicopter, I would be in the first line of fire.

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Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes. Usha Kulasegaran Thank you. 11. When the helicopter landed, I was transferred to a pick-up truck and taken to a spot where I was then taken by another pick-up truck to a place where I was in a room where the removed my hood. The room was a normal room with a sofa and 2 chairs. I was still not given any clothes.

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Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 12. I was in the room for half an hour or so and taken to another room which was an office and there I met Colonel J, an American sitting with his feet on the table. I was asked to sit. I was offerred tea, chocolate, juice and whiskey. The Colonel was chewing betel nut. I did not take any of the food and drinks offered. I was shown a list of 20 names and a picture of some people, some of whom I recognised because they are known in the country, but whom I do not know personally. I said I am too young to know these people. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 13. The Colonel got up and tried to tie my hands behind the chair. The chair was big and this could not be

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done. The Colonel called in soldiers and they tied my hands and put a plastic bag on my head and it began to suffocate me. They kept asking me the same question on the 20 persons and Saddam Hussein and slapped me many times. I struggled to breathe due to the tight plastic bag, but I managed to bite a small opening and that allowed me to breathe. I became unconscious. I woke later in the first room. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 14. Later they took me in a car with some soldiers. I was given an Iraqi flowing shirt, pants and slippers. I was taken to identify the homes of the same 20 people in Saladdin. I said I do not know where these people live because I stay in Bhagdad. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 15. I was brought back and my clothes were taken away. My hands were tied and my head hooded. Again I heard screams and shouts. I was very scared and suddenly I was thrown into water and I struggled because I cannot swim. A rope was tied to me and I was dragged where the water was shallow and dragged to where the water was deeper. I realised I was in a swimming pool. This went on possibly for half an hour. I was removed out and placed in a room where the airconditioning was very cold and my hood was removed. One of the soldiers brought a towel to be placed under my feet so as not to wet the floor. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 16. I felt something going out of my left lower leg but I could not feel what it was due to the freezing condition that I was in. They then dragged me from the hood. My hood


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was removed and I saw my leg was bleeding. My leg was then bandaged.

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Usha Kulasegaran Thank you. 17. I had not eaten for 10 days. An interpreter told me that I would be taken back to Bhagdad. I was taken in the same manner back to Bhagdad.

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Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 18. Once I reached Bhagdad, I was taken to Abu Gharib prison. I was taken to be registered in the prison and a number was given to me. I was given a blanket, toothbrush and a cup. I was then taken to the prison compound where tents had been pitched.

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Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 19. At the tent, a major gave me slippers to wear. There were 28 tents. Each tent had about 30-45 persons, and there was a toilet. We were only allowed a few seconds shower once a week. We were fed 3 times a day, but the food was very bad.

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Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 20. The Americans would also make periodic searches in the tents and harrass the prisoners, and at times they would take the prisoner’s copy of the Quran and throw it on the floor and stomp on it with their boots.

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Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 21. I was not called for any questioning in Abu Gharib. The prisoners would protest their detention and the poor prison conditions. One day, there was a prison protest and the American soldiers responded to stop the protest by using live ammunition and grenades. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 22. During this protest I was injured in my left eye. I fell on the ground. I was taken into the prison clinic. A piece of shrapnel had pierced the upper lid of my eye. They treated my wound and gave me some medication. They informed me that I will need surgery but there were no facilities in the clinic. I have since lost sight in my left eye. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes

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Usha Kulasegaran Thank you. 23. I was released on 2nd April 2004. All our property and assets were taken by the ruling government. I then returned to my family’s home town of Saladdin. From there, I and the members of my family moved to Syria. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. 24. I attach herewith the Conditional Release Letter from Abu Gharib prison marked as exhibit S1. I also attach my medical report marked exhibit S2. Interpreter, kindly refer the witness to both exhibits, S1 and S2. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes. He confirms. The medical report and the release letter.


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Usha Kulasegaran Thank you. That’s right. S1 the release letter and S2 the medical report. Thank you. 25. I wish to state that when I was detained, there were no grounds to do so. Further, I was under-aged and placed in prison with adults and in the process was tortured and abused. I could not finish my schooling and my future has been severely damaged by the wrongful actions of the American forces. I’ve also lost my eye-sight in my left eye. My family was a well-to-do family based on our ancestral family wealth and we lost everything due to the invasion and the baseless persecution against me. I make living now by repairing mobile phones in order to support my family in Syria. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Usha Kulasegaran Thank you. Mr. Salam, we’ve come to the end of your statutory declaration. Kindly elaborate in your own words as and when areas that you feel necessary for elaboration. Now’s the time to do so. Thank you. Salam Fanar Zabin and then Translator for Salam Fanar Zabin This is all that he wants to state. Usha Kulasegaran Thank you. I hand this over now to the Commissioners’ further questioning of the witness. Thank you. Dennis J. Halliday Mr. Salam, thank you very much for your testimony. When we meet a young, brave, smart man like yourself who’s clearly proud to be an Iraqi; I think we would all be proud to be considered an Iraqi.

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Dennis J. Halliday In paragraph 10, Mr. Salam, you mentioned that when in this helicopter, you going to the Saladdin prison, you were placed conspicuously in front of an open door. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Dennis J. Halliday And you very firmly state in your testimony that that was done so you would be in the line of fire. Salam Fanar Zabin and then Translator for Salam Fanar Zabin Yes Dennis J. Halliday Can you just confirm in your own words, exactly what that means. Salam Fanar Zabin and then Translator for Salam Fanar Zabin The helicopters are used to transfer prisoners from one prison to another. But they intentionally place me next to the doors because the resistance during that period was very tense. They put me in the front line so that any attack would, if the helicopter was targetted, I’ll be the one who gets shot, not them. Or they wanted to tell the resistace fighters that there are Iraqi detainees here, so don’t attack us. Dennis J. Halliday Thank you very much. That’s what I wanted to have you clarify - that you were in fact protecting American troops. In paragraph 12, you made reference to a mysterious, vicious and very unpleasant Colonel J. Could you share with the Commission the full name of this man? Salam Fanar Zabin and then Translator for Salam Fanar Zabin I don’t know him but they all call him Colonel J.

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Zainur Zakaria Well, I don’t see any commissioners wishing to seek clarifications. Can I take it that you can call on the next victim? And I wish to thank Mr. Salam Fanar Zabin

Megat Suffian Merican Honourable members, I shall now call the next witness which is Mr. Abbas Zaid Obaid. His statutory declaration is contained in Volume 2 of the statutory declaration. Abbas Zaid Obaid Bismillah ir-Rahman ir-Rahim Megat Suffian Merican Briefly, if I may our witness here differs from the rest of the witnesses in the sense that he is not giving evidence with regard to personal torture, but as a witness to a destruction. So if I may extract the necessary paragraph in the statutory declaration to serve this purpose? ... interpreter, so I will go through the paragraph in English to extract the necessary … word. Translator for Abbas Zaid Obaid He would like to start by introducing himself first. Megat Suffian Merican I will read the first few paragraphs which will introduce … perhaps he can say his name ... Abbas Zaid Obaid and then Translator for Abbas Zaid Obaid Bismillah ir-Rahman ir-Rahim ... In the name of Allah the Most Gracious, Most Merciful. Allah SWT says the oppressors will know what ends they will be and praise be to Allah SWT who gives victory to the patient and struggler, peace and blessings be upon Muhammad SAW, his followers, companions until the day of deen. Peace be upon you. I greet you from the land of struggle and jihad, the land of victory, the land of Iraq.

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I am a witness for the first and the second battle that happened in Fallujah and I’m ready for any questions. I, Abbas Zaid Obaid, an Iraqi citizen of full age and, do hereby solemnly and sincerely declare as follows. I am 45 years old. Abbas Zaid Obaid I live in Iraq Abbas Zaid Obaid and then Translator for Abbas Zaid Obaid I live in Iraq. The purpose of making this declaration is to highlight the destruction in Fallujah city in Iraq which I witnessed myself. Megat Suffian Merican I will read directly paragraph 4. The American military operations started in Fallujah about 4 months after the entry of invading forces to Iraq when they tried very hard to establish a foot-hold in the city but the people of Fallujah tried to defend it and make it a symbol of resistance. Also there were defenders coming from neighbouring cities to join them. Abbas Zaid Obaid Confirm. Yes.

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Megat Suffian Merican I now go to paragraph 8. For a period of more than 6 months, the invading forces mobilised and expand all its efforts and capabilities to the extent that they called for British troops to replace them in southern Bhagdad to pound the city with all what they have in store with ammunition, bombs and missiles. Only Allah the Merciful, the Greatest have the power to know it. Bombers, B-52 bombers bombarding the city daily. Even 1 inch in the city was not spared. Destruction was everywhere making the city to become a large cemetary for burial of bodies and defenders in its gardens and playgrounds. Many houses collapsed that led to even homes to become cemetary for their owners. Abbas Zaid Obaid I confirm it.


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Megat Suffian Merican I now go straight to the destruction of the city. Paragraph 10. I can summarise the results of the military operations that took place in the city as follows: (a) destructions of roads. Next page, military operations destroy the entire interior of the streets in the city. (b) destruction of electric power network. Destruction of processing lines to homes, shops, workshops and cutting wires. Many towers are damaged or removed and most of transformers are destroyed. (c) destruction of water system network supply. The passage of heavy military vehicles destroyed the network supplying water. Destruction of all roads, streets, and alleys to crush most of the pipes buried under the ground for the processing of pure water for homes and commercial and industrial shops. Abbas Zaid Obaid Confirmed Megat Suffian Merican Destruction of sewage system. The sewage system as much as experienced by the network processing of water has been completely destroyed. Abbas Zaid Obaid Confirmed Megat Suffian Merican Destruction (e) destruction of educational system. Schools were being occupied by the invading forces and the teaching staff were prevented from working and also the students were sent home so that the whole system of education would collapse.

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Megat Suffian Merican The destruction of many schools, colleges and educational institutions was a result of indiscriminate shelling between school, hospitals, home and the side of resistance.

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Abbas Zaid Obaid Confirmed Megat Suffian Merican So many students left school and stopped learning and became illiterate and their families send them to work in heavy jobs to earn money for a living. Abbas Zaid Obaid Confirmed Megat Suffian Merican Destruction of hospitals and health institutions. Health institutions have suffered so much because of the brutal aggression of the invading forces especially when it needs to work in such conditions in its full capacity. The damage done to these institutions are as follows: Destructions of all small clinics that provide medical services. Abbas Zaid Obaid Confirmed Megat Suffian Merican Closing and destroying of all private clinics in the city. Abbas Zaid Obaid Confirmed Megat Suffian Merican Closing and destroying most of the pharmacies in the city. Abbas Zaid Obaid Confirmed

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Megat Suffian Merican Blockade of the road leading to the only hospital in the city and shooting over the heads of those who are coming to the hospital by foot.

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Megat Suffian Merican (c) destruction of shops and industrial zone. Shops were destroyed together with the industrial zone by invading forces which stormed into shops and broke the locks and looted it. This led to the rise of unemployment.

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Abbas Zaid Obaid Confirmed. You can complete the paragraph. Megat Suffian Merican Allright. Destruction of mosque and place of worship. Abbas Zaid Obaid What? Megat Suffian Merican The last paragraph. Mosques received special attention from the invading forces which invoked their hatred as they believed that mosques are the headquarters for the presence of the resistance to take up position in the minarets to monitor and snipe invading forces. This resulted in the invading forces destroying 90% of the mosques in the city and the destruction of 30% of the minarets; 65% of the Imam, Ktabaiha, moathens, guards and servants were killed. Abbas Zaid Obaid Confirmed Megat Suffian Merican This is the final paragraph which confirms that you have declared this solemnly, voluntarily. Do you confirm? Abbas Zaid Obaid Confirm. Yes. Zainur Zakaria Any questions? Abbas Zaid Obaid This I want to say. (then in Arabic)

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Abbas Zaid Obaid and then Translator for Abbas Zaid Obaid We seek the compensation from Allah SWT. We seek refuge in Allah SWT. And thanks to God for everything. (Abbas Zaid Obaid explaining to translator) Except the situation of (laughter from the audience)

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Translator for Abbas Zaid Obaid Except the situation of those in hell fires Abbas Zaid Obaid and then Translator for Abbas Zaid Obaid I would like to thank you on behalf of the Iraqis, and I appreciate what you’re doing for us, and this shows how strong your faith is. Prophet Muhammad SAW said, “Believers in their mutual love and mercy are like the one body, once an organ is sick, the whole body will be sick”. I ask Allah SWT to protect Malaysia government and people and reward you the best rewards for your good deeds and make you as His soldiers on earth as He is the only one able to do so. Peace be upon you. Zulaiha Ismail Mr. Abbas, could you please share with us your occupation because this appears to be the work of a professional who understand, who knows the infrastructure of Fallujah. Abbas Zaid Obaid I am chief engineer in electrical engineer. Zulaiha Ismail Thank you.

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to Fallujah. I’ve had lemon, lime tea in Fallujah many times. It’s a tragedy what’s happened. Now, I want to ask you, are you familiar with the term genocide?

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Abbas Zaid Obaid and then Translator for Abbas Zaid Obaid I’m not very familiar with this term because I’m not from a legal background.

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Dennis J. Halliday Well, I cannot, will not put words in your mouth I would get into trouble from my colleagues over there. But off the record, let me say that many of us believe that the destruction, the total annihilation of Fallujah, the killing of the people of Fallujah, the damage of the social well-being and infrastructure of Fallujah represents genocide.

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Abbas Zaid Obaid Just a moment … Dennis J. Halliday The only exception I would make … genocide means removal of children … Abbas Zaid Obaid He will cannot be able to translate to me.

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(audience laughs) I agree with you. Dennis J. Halliday I was just going to say that one of the definitions of genocide includes the removal of children from their families to be brought up elsewhere. This, of course, sadly is not the case in Fallujah, because in this case the Americans killed the children of Fallujah. Abbas Zaid Obaid and then Translator for Abbas Zaid Obaid This is an American methodology in dealing with the whole world as they want to be the only superpower.

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Dennis J. Halliday Well, I can’t speak to that, but thank you very much for your intervention.

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Michel Chossudovsky Thank you Mr. Abbas Zaid. We, I think we all acknowledge the depth of the destruction in Fallujah. I would like to ask the following question. Do you have evidence that specific schools and hospitals were targetted with what the Americans called ‘smart bombs’ while within these schools and hospitals there were children and sick people respectively. I make this question, I put forth this question because the United States puts for the notion of ‘collateral damage’. But we know that these weapons systems can target, and I’ve seen it, in Yugoslavia, they can target a school or hospital within 50 feet, I’m sorry, within 3 feet of the centre target. They can also target electrical systems with a view to disabling, for instance, if it’s a children’s hospital, they will target the electric generator within a few feet, and these are very precise weapons. Could you give specific response to that question as to the use of these weapons in particular. Abbas Zaid Obaid Before I answer. There is no any clever bomb. Stupid bomb. It cannot be recognised by civilian Abbas Zaid Obaid and then Translator for Abbas Zaid Obaid The whole city was … and if you check my declaration, the area of the city was 35km square. Several children, women and men were killed. So many mosques were destroyed while people were inside the mosque and this was shown on many TV channel because what makes the modern wars different is that you’ll see it live, just like football matches. There are so many statistics that I have and so many names that I have. If you want, I can supply you with these documents.


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Zainur Zakaria Anyone? Well, if there are no further questions, any statements from the legal team?

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Avtaran Singh Yes Mr. Chairman we’d just like to make a short closing statement.

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Zainur Zakaria Well before that can I just thank En. Abbas Zaid Obaid for his testimony; and Avtaran Singh Honourable members of the commission, we have all heard testimonies from witnesses who have experienced the complete absence of the due process of law in their detention. The concept that has been applied is guilty until proven innocent, yet they have been given no legal recourse to prove their innocence. Confessions have been obtained where there are no charges. To torture, abuse, fear, humiliation. Being taken away and imprisoned without any cause. This goes against all that civil society stands for. Victims have been used as human shields. Essentially, nothing has been left to be breached under any convention, or under any law. The victims have no recourse to any judicial remedy or any at all. They have not even been given an opportunity to be heard in any national or international court or tribunal. We’ve also heard the testimony on the use of banned weapons such as depleted uranium that affects an entire population for generations to come. Honourable members of the commission, I will keep my closing very short. I would like to highlight that this has been the first opportunity for these innocent people to be heard which is a step forward for these victims towards seeking justice, and to bring a closure to their suffering. May this honourable commission give voice to the voiceless, and to received these testimonies and investigate the matters that

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have been brought before this honourable commission. Thank you, Mr. Chairman. Matthias Chang Mr. Chairman, can I just put a rider to what my learned friend says, because I thought he would have covered one point that really disturbs me tremendously, because in the testimonies of various witnesses, question was posed, “Did you get any redress from your country, from the Americans, from UK�? To me that is a very dangerous path we are heading to, because it suggests that if you have been redressed, your suffering would have, to an extent, been mitigated. Because I think the issue of redress is irrelevant to whether a war crime has been committed and I will hope that in your deliberations, while you may want to know whether they received any redress, that you will not be detracted from the point of view that regardless of any redress or compensation, which they have not received, but in any event, if there is any compensation received by any victims besides themselves, that should not be taken into account in any adjudication whether a war crime is committed. Thank you very much. Zainur Zakaria Yes, Mr. Matthias; I can assure you that the question posed as to redress will not in any way detract us from performing our functions i.e. on the evidence to determine whether there has been commission of war crimes in contravention of international conventions. Now may I just say this in closing. I would like today, the commission has heard the testimony of 6 victims who claimed to have been tortured by coalition forces as a consequence of the war in Iraq and Afghanistan. We have also heard the testimony of an expert on the use of depleted uranium in the course of these wars. Now the role of the commission, as we all understand to be, is now to evaluate the evidence and testimonies to determine, on a prima facie basis, whether on the evidence there have been commission of war crimes and crimes against humanity in


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contravention of international law and conventions such as the Geneva Convention of 1949 and the Convention Against Torture of 1984.

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Thereafter, the commission shall submit a report of our findings and recommendations to the legal team for further action, and it will be up to the legal team to decide and identify whether there have been commission of such war crimes or crimes against humanity and to frame whatever charges that may need to be framed against those responsible for the commission of such crimes.

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Now I would also wish to thank all the victims who came today to present their evidence and also the expert witness who gave evidence on the depleted uranium. I would also like to thank the members of the legal team and especially Mr. Matthias Chang who has put in so much work in this hearing and also the Registrar, the reporters, the members of the war crimes commission who have been, who have shown their interest through their clarification sought and last but not least, the attentive and supportive audience who have attended the session from morning and especially Yang Amat Berbahagia Tun Mahathir Mohamed and Yang Amat Berbahagia Tun Dr. Siti Hasmah for having been here all day and with that, the Commission now stands adjourned.

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APPENDIX B

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KUALA LUMPUR WAR CRIMES TRIBUNAL

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NOTES OF PROCEEDINGS 31 OCTOBER 2009

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Tun Dr Ismail Hall, Level 2, Putra World Trade Centre Kuala Lumpur 10

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JUDGES : 1. 2. 3. 4. 5. 6. 7.

Dato’ Abdul Kadir Sulaiman (President) Tunku Sofiah Jewa Mr Alfred Lambremont Webre Prof Salleh Buang Prof Francis A. Boyle Prof Niloufer Bhagwat Prof Emeritus Datuk Dr Shad Saleem Faruqi

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1. 2. 3. 4. 5. 6. 7. 8.

Prof Dr Mohd. Akram Shair Mohamed Mr Musa Ismail Prof Hans-Christof von Sponeck Mr Zainur Zakaria (Chairman) Mr Dennis J. Halliday Dr Zulaiha Ismail Prof Gurdial Nijar Prof Michel Chossudovsky

REGISTRAR : 35

Mr Nizam Bashir Starts : 9.17 a.m.

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Good morning Ladies and Gentlemen. The role of the KLWCC is seeking an advisory opinion from the KLWCT to consider “Whether a Head of State can unilaterally exempt itself from complying with the provisions of any international treaty or convention duly ratified by the state, with first abrogating the relevant treaty or convention”. It is a tribunal of conscience representing the International Community to response to the Crime of War throughout the world especially committed by powerful states who are unlikely to be brought to the International Criminal Court and I hope and although a judgment can be purely declaratory in nature the accused will be found guilty to the War Commission House Keeping - switch off hand phones, refrain from moving in and out of the hall. Introduction of Commissioners Introduction of the Judges Conduct of proceedings is forwarded to the Registrar of the KLWCT, Encik Nizam

Nizam Bashir : The Tribunal will convene shortly Entrance of Panel Judges - please be up standing Dato’ Kadir : Today we have before us the Commission for War Crimes of Kuala Lumpur. I think to save time, you can please proceed Zainur :

Good morning, Honourable President and members of the KL War Crime Commission. This morning the KL War Crime Commission appear before your Honour to seek an advisory opinion from the Tribunal pursuant to an application filed by the KL War Crime Commission war crimes - application reads as follows : “Whether a head of state can unilaterally exempt itself from complying with the provisions of any international

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treaty or convention duly ratified by the state, with first abrogating the relevant treaty or convention”.

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Appearing with me are members of the Commission - introduction - all the Commissioners Honourable President of the KLWC Tribunal, after September 11, 2001, Senior Administration of Lawyers lead by then White House Counsel and Attorney General Alberto Gonzales developed the frame work for the administration to circumvent International Law straight from detention and interrogation. The series of legal documents, a lot of Memoranda and setting orders were issued by the then President Bush. Pursuant to that a department justice for this purpose … that Customary International Law does not bind the President of US and Armed Forces in the decision of detention and conditions concerning the AlQueda and Taliban prisoners. The then White House Counsel, Alberto Gonzales in the lethal memoranda argued that the GC’s strict interrogation method used by the US in this new kind of war. Non-applicability would preserve the accessibility in the war against terrorism which in its judgment renders obsolete GC’s strict limitation on questioning of enemy prisoners. Gonzales also warned that US officials involved in harsh interrogation techniques could potentially be prosecuted for war crime under US Law referring to the Patriot Act 2001, law that carries death penalty if the convention was applied. On 7.2.2002 President Bush upon legal advice issued a gres-gracious order that the GC would apply to the Taliban terrorist but not the Al Queda International terrorist. On 4.4.2002, the Secretary of Defense, Donald Rumsfield, commissioned a report of working group on the detainees’ interrogation for the Pentagon Working Group Report. The report asserted the need to interrogate prisoners in a manner beyond that which may apply to prisoners of war who is subjected to


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the GC. I shall not read in detail these Executive Orders and Memoranda since my colleague, Prof Nijar will be addressing the Tribunal on the details on this and other Orders and Memoranda. In December 2005 Congress approved the Detainees’ Treatment Act, in short the DTA. The DTA prohibited cruel inhumane or degrading treatment or punishment on person in custody of the USA Government without any regard to geographical and practical limitation. On 29.6.2006, the Supreme Court of the US decided that Rumsfield holding the Community Commission established by the President and tried was not competent and not consistent with the law which at the time was a general requirement of the uniform community of justice. Common Article 3 of the GC was part of the Article of the applicable law of war, the Court stated because the armed conflict with Al-Queda constituted a conflict of international character. The Court’s ruling was contrary to the President’s prior determination that Common Article 3 does not apply to an armed conflict across national boundaries with an international terrorist organization. Faced with the decision in Hamdan, the President worked with Congress which lead to the passing of Military Commission Act in 2006, in short MCA. The MCA left the responsibility for interpreting the meaning of an Article 3 of GC except for the brief features defined in the amended War Crimes Act to the President. To this end the MCA declared the GC judicially unenforceable and expressly provided that the President may issue an interpretation of the GC by Executive Order, that is authoratative as a matter of US law in the same manner as other administrative regulations. Honorable President and Members of the Tribunal, yesterday the KL War Crimes Commission heard and received complaints and testimonies from several persons who were detained and how, or were victims of torture alleged to have been

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committed by soldiers and non-military personnel under the command and directive of the commanders of the Coalition Forces in the aftermath of the legal invasion-occupation of Iraq in 2003 and the military operations conducted by the IAF in Afghanistan. We have also in 2007 when the War Crime Commission first sat heard and received complaints and received testimonies from several other detainees of alleged torture suffered by them while in detention. The crux of the complaints filed by the detainees were the treatment they received at the hands of the captors, which treatment have been in contravention of international conventions such as the GC and the conventions against torture. In the course of our investigations with the complaints filed by the victims, we came across these executive orders and several other memorandas issued as I have referred to earlier, some of which sought to circumvent, exclude, exempt, immunize and avoid the application of international convention especially in regard of alleged acts and conducts that tantamount to torture committed by members of the armed forces of the coalition countries in Iraq, Afghanistan and elsewhere. The Presidential Executive Orders which I have referred to earlier and as such mentioned earlier seek to avoid the application of the relevant provisions of international conventions such as the common Article 3 of the GC for the amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949 and the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment 1984 which the countries concerned are not subject to and this is what prompted the KL War Crime Commission to apply and seek the advisory opinion which I have read earlier. This advisory opinion sought so that the prosecution team‌


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Dato’ Kadir : Well, if that’s a background briefing (Zainur: Yes) which I believe that could be convening of this KL War Crimes Tribunal Let me get to the background but the most crucial thing that we need to hear from you is the jurisdictional issue, is a threshold. You have to satisfy us that we have the necessary jurisdiction to listen. Thank you very much anyway for the background.

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May I finish my opening address, Mr President because there are Members of Commission that will be addressing the Tribunal directly on the legal issue in question. Now if I may continue with my opening statement - the reason for seeking this advisory opinion is so that the prosecution team may be in a good position to decide firstly whether liability attaches to who may be charged, how high up the command chain the liability attaches for alleged war crimes and crimes against humanity. For that reason and also important to enable the War Crimes Commission to establish the parameters of their investigation the advisory opinion is sought. Now, Mr President 3 members of the Commission will be addressing the Tribunal, they are Prof Michel Chossudovsky, Prof Dr Hans-Christof von Sponeck and Prof Gurdial Singh Nijar. Though it may not sound directly relevant to the question posed to the Tribunal, I would seek your indulgence because some of the members of the Commission who may be addressing the Tribunal may be dealing with the backdrop issue at hand and hence I seek your indulgence to bear with us and also to allow them to, if the tribunal feels that there are any clarification sought, feel free to do so.

Dato’ Kadir : The point is this. The issue is on the application sought, there is an application for advisory opinion from this honourable Court, but the pertinent issue is: Do we have jurisdiction to hear more in detail which will result at the end of the day a valid advisory opinion coming out of this Court, that’s

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what I meant - Satisfy us that we have jurisdiction to hear this very application for an advisory opinion, that’s what I meant.

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With due respect, Mr President, as we all appreciate and understand the Tribunal and the Commission is not empowered to issue declarations or orders which are binding. The advisory opinion is sought in the context of an advice in the structure of the Tribunal and the Commission whether any Government or any Head of State or any Authority decide to abide by the …

Dato’ Kadir : Well taken. We know you want an advisory opinion but we don’t want to be seen as giving something when in the first place we have no valid jurisdiction to talk about it, more to issue an advisory opinion. That’s what I meant: Satisfy us first that we have jurisdiction. Once we are satisfied that we have jurisdiction, we go ahead and listen and pronounce our advisory opinion. If at the end of the day if we find we have no jurisdiction, then why are we here? ZZ :

Mr President, as we understand, the position of the Tribunal and the Commission (interrupted by Dato’ Kadir)

Dato’ Kadir:

Just a minute, my Learned Sister … say something at this …

Bhagwat :

Counsel, we will hear it all those issues addressed to us on the backdrop. We do not wish to shut out anything which you wish to place before us and the backdrop is certainly relevant. What the President is pointedly asking for is the preliminary submission required to be made, the threshold submission. And I understand if Counsel is submitting on certain aspects as an opening statement, I understand that. What the President is enquiring specifically is that we would during the course of submissions, we wish to be satisfied on the preliminary or the


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threshold issue which confronts us. As you are aware that advisory opinion flows from a certain jurisdiction and whereas an advisory opinion is quite different from a dispute between 2 parties which comes to a Court; but there are well laid down parameters or guidelines relating to in what circumstances and situations can advisory jurisdiction be exercised. And that is what the President is seeking a specific clarification. If you satisfy us that a member of your legal team will subsequently address us on the issue then, of course, you can proceed. ZZ :

Yes, unfortunately, I have not finished my opening statement before I was ….

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Dato’ Kadir : Carry on ZZ :

In the course of the submission by other members of the Commission they will be dealing with this issue. I do not want to duplicate or overlap with what they are going to say and since the Tribunal is seeking its enquiry about the threshold issue, then I would invite Prof Gurdial Singh Nijar to address the Tribunal first. Yes, I now invite Prof Nijar to take the rostrum.

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Dato’ Kadir : Thank you. Bhagwat :

Counsel, have you completed your submissions? I request you to complete your opening statement first and then refer to Prof Nijar

ZZ :

Yes, just a small part left. Lastly I want to conclude that I wish to express my acknowledgement to the American Civil Liberties Union and Centre of Constitutional Rights for the information and the materials referred to in my opening statement.

Dato’Kadir:

Thank you. Take it from us, once we are satisfied of our jurisdiction here, valid jurisdiction here, we

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will do anything within the ambit without fear and favour. Take if from us.

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Nijar :

Distinguished members of the KL War Crimes Tribunal. Let me address immediately, I have a submission which is being handed out to you in writing in outline. But to address the question that has been posed, before I commence my submission: What is the jurisdiction of the KLWCT’s role to adjudicate upon an advisory opinion. Members of the Tribunal, we are governed by our Charter for the KLWCC and Rules of Procedures and Evidence of the KLWCT. I believe each one of us has a copy. If I could respectfully invite the Tribunal’s kind attention to Page 8 of the Rules, in particular Article 7 - Jurisdiction of the Commission and the Tribunal. Sub-Article 1 says:“The Commission and the Tribunal shall have jurisdiction under this Chapter in respect of the following crimes : (a) Crimes against peace; (b) Crimes against humanity; (c) Crimes of genocide; (d) War crimes And the relevant part is Sub-Article 2(a) which says “The Tribunal may, in its absolution discretion, give an advisory opinion on any question of International Law of substantial public importance at the request of the War Crimes Commission, the Legal Team, the parties before the Tribunal or any one or more of the amicus curiae appointed by the Tribunal in any particular case”. (b) - “Questions upon which the advisory opinion of the Tribunal is asked shall be laid before the Tribunal by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied, where necessary, by all documents (c) “If the Tribunal agrees to comply with such a request, the Registrar shall forthwith give notice of the request for an advisory opinion to all concerned who shall be entitled to make written submissions before the


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Tribunal”. And (e) - In the exercise of its advisory functions the Tribunal shall further be guided by the provisions of the present Charter and Rules of Procedure and Evidence of the Kuala Lumpur War Crimes Tribunal. So, we have jurisdiction under the Charter setting up the Kuala Lumpur War Crime Tribunal and the War Crime Commission Webre :

Nijar :

Thank you Counsel. If you look at Article 7, Section 1(a) it states that our jurisdiction is limited to crimes against peace, crimes against humanity, crime of genocide and war crimes. And yet if you look at how the request for an advisory opinion is framed, it states, “complying with any provisions of ‘any International treaty Convention duly ratified by a State”. Now, we take judicial notice that there have been over 40,000 International treaties and conventions that have deposited with the Secretary-General of the United Nations pursuant to Article 102 of the UN Charter as treaty depository. The vast majority of those treaties do not deal with the subject matter jurisdiction of this Tribunal which is crimes against peace, crimes against humanity, crime of genocide and war crimes. Would you not say then that the current framing of this question in the application for the Advisory Committee is overly broad, and that the question should be re-framed to state any international treaty or convention relating to crimes against peace, crimes against humanity, crime of genocide and war crimes. That is the limits of our jurisdiction. Yes, I am completely guided by your Honour on this and it is indeed within the context of the Charter and the Rules that we have made this application and therefore I would apply to contextualize this question in the exact terms as suggested by your Honour and as you would note from my submission later, shortly, we are actually dealing with very specific covenants and treaties and in particular the International Covenant of Civil and Political

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Rights, the Geneva Conventions including the 1977 Geneva Protocol, the 1984 Convention against Torture and one or two subsidiary conventions that deals with the, for example, the one dealing with the suppression of terrorism. So, we will be indeed, my submission makes clear that we are clearly limiting it to war crimes and crimes against humanity. Therefore I seek your Honours’, the distinguished members of the Tribunal’s, consent to so limit this application which is, I agree, overly broadly stated.

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Bhagwat :

Which means you would be confining your submissions to International Humanitarian Law (Nijar: Yes) context such as the Geneva Convention (Nijar: Yes, entirely). You are making statement at the Bar (Nijar: Yes) that we should confine our attention to (Nijar: Yes) your submission, statement made, International Humanitarian Treaty Law Conventions …

Nijar :

Entirely, in fact we are dealing with (interrupted by Dato’ Kadir)

Dato’ Kadir :

Do you need time to amend or do something …we will give you all the necessary time

Nijar :

If your Honour would agree to accept an oral amendment that I propose, I can make an oral application to qualify this, the distinguished Tribunal would accept this, then I would say if I could refer to the application complying with any provisions

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Dato’ Kadir : Sorry for the interruption. My Learned Sister … Tunku Sofiah : Mr. Gurdial Singh Nijar, you seem to be readily accepting this Article 7 Clause 1 of the Charter. Can you just look further down to Clause 2(a), can you please interpret that clause for me?


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Nijar :

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Yes, 2(a) says “The Tribunal may, in its absolute discretion, give an advisory opinion on any question of International Law of substantial public importance at the request of the War Crimes Commission…”.. This allows a very broad application however, this Article follows upon sub-Article 1 which has been noted by the distinguished Member of the Tribunal - limits to jurisdiction, the jurisdiction is limited to crimes, these 4 stated crimes and therefore sub-Article 2(a) must necessarily be read subject to the qualifying jurisdiction that is set out in sub-Article 1(a). So it is for that reason that I have readily agreed to the comments made guiding …

Dato’ Kadir : Why I brought this up, you see, “Whether a head of state or Government can unilaterally exempt itself from complying with any provisions of any international treaties” - very clear, “any” which is very wide for example there are treatise on the other matters which is outside the jurisdiction of Article 7 (1), they are also conventions, treaties - but we are more concerned about that, “any”, then we may go beyond the bounds, you may be submitting on something else which has no relevance to Article 7. So that is why I invited you, whether you need time to properly amend it, but you have told us, that you request whether you could, you don’t need the adjournment but you may proceed with oral submission confining yourself only to 7(1) Nijar :

Honourable President, I would suggest that after the word “international treaty conventions dealing with international humanitarian law” I would suggest that after the bracket, such as the Geneva Conventions, I propose an amendment as follows, the insertion of “dealing with international humanitarian law and as set out and in particular as set out in Article 7(1)(a) to (d) of the Charter of the KL War Crimes Commission”

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Dato’ Kadir : Right it is very clear now. So I repeat for purpose of clarity: “Whether a head of state or Government can unilaterally exempt itself from complying with any provisions of any international law dealing with international humanitarian law and in particular as set out in Article 7(1)(a) to (d) of the Charter” (Nijar: Yes), Right, and then “duly ratified by the State without first abrogating the relevant treaty convention”, so you see that is very clear now. Proceed. Nijar :

Thank you Mr President and Members of the Tribunal, I would be following in broad outline the submission that has been placed before the Tribunal members and I kindly invite the members of the Tribunal to refer to page 1 of the submission from which I will be proceeding. I have set out in first paragraph the application which now stands duly amended as read out by the Honourable President and to even place it very squarely within jurisdiction of this Tribunal I have in paragraph B provided the factual context of this application and in line 3 I have made it clear that “The issue arises in the context of the treatment of detainees in disregard of established international rules on human rights and the treatment of combatant prisoners by the United States, in particular, arising from and after the attack and occupation of Afghanistan and Iraq”. The USA together with Britain and Australia, among others, launched an attack on these nations. They declared it as part of their War on Terror. As a result several persons were detained in prison in Afghanistan, Iraq and Guantanamo and allegedly in several undisclosed places. Some of these detainees have presented to this Commission yesterday as well as in the year 2007 their treatement, their graphic story - their graphic accounts tell a story of sustained barbarism of incredulous proportion, the truth of these applications must, of course, await a determination by this distinguished Tribunal in due course as is necessary in judicial proceedings. What is relevant, however, is if this treatment is found to be in


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violation of the relevant treaties and conventions dealing with humanitarian law, then the question arises: “Can a perpetrator be excused on the ground that he has declared himself exempt, unbound by the international treaties and conventions that have spawned 50 years of development of international law?” That is the question on which we asked for the advisory opinion.

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And the issue also deals with a broader question, whether the perpetrator is immune from prosecution for crimes against humanity and war crimes under Customary International Law. So, one is the question of the treaties, is obliged under the treaties, and he seeks to exempt himself, that’s one question.

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The second question is, there is also International Customary Law, which also binds governments, countries, people within governments and countries, heads of states and whether or not, so this is a subsidiary question that flows from the first question. If you look at the exemptions claimed by United States, it has declared itself out of reach of the relevant international law provision, relating to humanitarian law. It has issued several memos, opinions to effect this exemption. In this submission I will be referring to some key memos - there are a huge number of memos but it may not be relevant to deal with all of them. I will deal with the key ones upon which the President of United States has relied. But amongst all of these memos there is a central thread that ties itself together. There is a firm assertion that the United States was unbound by any international law relating to torture in the treatment of detainees. So I focus now on a very specific crime against humanity which deals with torture. Now, the point I want to make that it is seeking to exempt itself from conventions and treaties to which it is a

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party dealing with the treatment of detainees. And it is our contention that that would be, those elements of torture constitute crimes against humanity, as I will presently show. But there are 3 specific treaties which bind the United States of America, to which it is a party, which I have a particular focus and I have set it out in paragraph at my page 2 in paragraph 3 - the International Convention on Civil and Political Rights, the Geneva Conventions, we have the conventions 1, 2, 3 & 4 as well as the 1977 Geneva Protocol, and the most recent 1984 Convention Against Torture. I will also suggest, with respect, that the United States violates its own law, in particular, the War Crimes Act 1996 which has been referred to by the Chairman of the War Crimes Commission as well as the Detainee Treatment Act of 2005. Now the first question that arises is: What logic, what line of logic, is the United States following when it seeks to exempts itself from this. And, I submit, that there are 5 steps in this syllogism towards which, on the basis of which it seeks to exempt itself. This is what it says, it says, “The United States faces an unparalleled threat after 9/11, and this amounts to imminent, clear and present danger and therefore they are,” - that is the basis, the first basis. Secondly they say that, “All necessary means may be used to obtain information from captives, who are treated as combatants rather than ordinary criminals”. In the light of this they then say that, “International law is then inapplicable or unenforceable or irrelevant on that ground”. Then they go on saying that, “In any event, international law must be interpreted to allow a threatened State,” United States, “to do everything necessary to protect itself, and it means unbinding itself from international law, then it entitled to do so”. And finally, the logic is that the Executive in the form of the President, or as he is categorised in his


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military sense, Commander-in-Chief, may decide, President may decide what conventions, what treaties are inapplicable, why they are inapplicable, and he may decide that on the basis also of determining himself, by Executive command, the status of the captive prisoners. Now, I want to just briefly avert to the obligations that exists in International Law and then we will determine whether the Memos, whether the Executive Order is or is not relevant. Since the end of the 2nd World War without doubt, torture and other cruel and inhumane treatments have been internationally outlawed, we take soft law, law that has no binding effect but has a normative effect on all countries in the world. And the first one of course is the Universal Declaration of Human Rights, 1948. It reads “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. No one means there is no exception provided for in the universal declaration. That is of course, soft law. And then we look at law to which the US is a party and which is binding. We look at the International Covenant on Civil and Political Rights that flow from the Universal Declaration of Human Rights Article 7, again says,”No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Boyle :

Counsel, before you proceed, I do have one question here. The characterization of the whole issue in the Universal Declaration of Human Rights Against Torture. I believe even the US Government takes the position that the prohibition on torture in the Universal Declaration of Human Rights, not talking the whole declaration itself, all 26 articles, but at least the prohibition on torture is customary international law and therefore would not qualify as soft law. Do you have a response to that?

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Nijar :

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I entirely agree with your observations. The reason why I say “soft law” is to avoid any comment that in fact the Universal Declaration of Human Rights is not binding upon parties. But as I shall presently show, in the 50 years of development this has indeed a become very clear tenet in International Humanitarian Law, and is binding for the parties. As I said, to take one step further we look at language set out in instruments which are binding upon the United States and I have quoted the International Covenant on Civil and Political Rights and indeed even if you look at the broader geographic zone within which the US operates, the organization of American states, for example, it is not a party to this, according to, I am not very clear whether it is a party - as of 2005 it was not a party to the American Convention of Human Rights but the point is that there is this wide understanding that no one should be subject to - It is simply not acceptable in this day and age as a result of the developments since 1948 for torture to form any part of public policy in any country in the world. It’s as simple as that. And of course we have the Geneva Conventions very clearly setting out that all detainees are subject to the standards set out in the Geneva Conventions, and I have set out at my page 3, the 3 conventions which we rely: The 1949 Geneva Convention which prohibits, convention 3 prohibits physical and mental torture and other forms of coercion against a prisoner of war - such acts are grave breaches of the Convention, Article 130. Geneva Convention 4 prohibits an occupying power from torturing any protected person, and I will presently deal with who is a protected person. This even includes those interned on suspicion and involvement in resistence movements.


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Presently we shall show, the testimony that we’ve had even include people who are actually civilians, people who went on frolic of their own to Afghanistan and found themselves in the crossfire of the dispute between United States and the Taliban. People who went there for completely innocuous and some of them for laudable purposes, charitable purpose with families who are actually civilians, who are not tied up to this whole process found themselves subject to the most cruel and degrading punishment that we could ever imagine. It brought tears to the eyes of even to the most hardy of listeners. And we have Common Article 3, promises minimum of humane treatment in armed conflict, not of an international character, I shall deal with this, to all civilians and non-combatants. And as the evidence which will form the construct upon which the KLWCT is going to decide, they were civilians. They were not combatants, however categorised. But we shall go one step further to suggest that the ambit of these conventions and treaties is that you must comply with this international humanitarian law and of course then we have the 1977 Geneva Protocol 1, the relevant provisions of which reflect customary law prohibits torture of all kinds and any other outrages on personal dignity against any person under any circumstance, and we will see how women were treated through this, because of this exemption in the manner that is entirely unacceptable in any civilized society. And of course the 1977 Geneva Protocol 1 bans even the threat of such acts, not just the commission of such acts, which is the case that will be presented before the KLWCT in due course, even the threats are banned. Finally the US is also a party to the 1984 Convention Against Torture. Now this is a very interesting Convention, the most recent, it collects, codifies all

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the general Geneva Conventions and obligations into more specific Acts, so it is extremely relevant. It prohibits torture and other acts of cruel, inhuman or degrading treatment or punishment - Article 16. It criminalises torture and seeks to end impunity for any torture by denying the perpetrators of such torture no refuge at all in any part of the world. That is why the House of Lords in the case of Pinochet, which I shall deal with at greater length presently, ruled that a claim for immunity, by Pinochet, could not withstand the 1984 convention - you cannot hide, in other words, in any part of the world, you can be reached. That is the significance of the 1984 Convention.

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And if you look at the terms of the Convention which will be relevant in deciding whether or not you can exempt yourself, the Convention makes it very clear - it defines torture broadly - any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, it encompasses acts which have been authorised or acquiesced in by a public official and it includes acts carried out to obtain from the victim or from a third person information or confession.

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Most important of all, the Convention brooks no exception whatsoever, even in a so-called War on Terror, and I’ll read that particular provision which has been negotiated, which says, “no exceptional circumstances whatsoever, whether a state of war, a threat of war, internal political instability, or any other public emergency may be invoked for torture” - Article 2(2). No exceptional circumstances, in other words, the ambit is to say very clearly that we will not accept any form of excuse, any form of exemptions.

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Counsel, I have question. You are aware that in respect of the Convention Against Torture and Other Cruel and Degrading and Inhumane Treatment, the United States has filed a reservation


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and declaration. Now, could you tell us what would be the implication of that reservation or declaration. Nijar :

Yes. Now, actually, it has been variously described as a reservation and so on but actually at my page 6, I addressed this question, paragraph 27, if I could kindly invite Tribunal’s attention. I have 4 points to make with regards to this. The first is, actually in my respectful submission it did not enter a reservation, it entered an understanding. So I agree that a reservation can often change the international legal obligation. It’s my view that an understanding does not, although I have my views upon reservation as well in a short while. Now this, the Deputy Assistant AttorneyGeneral of the United States, John Yoo, made this comment in his August 1st, 2002 Memo. He said and at paragraph 28, I set it out. He said, in support of his contention that you do not have to abide by the international conventions, he said that, “Germany commented on the US’ reservations but did not oppose any US reservation outright”. Now this is …

Bhagwat :

So there was a reservation

Nijar :

No, this is Yoo’s contention

Bhagwat :

Yes but Germany commented on the US’ reservation but did not oppose any US’ reservation

Nijar :

Yes, that is the contention of the Assistant AttorneyGeneral, who in my respectful view without meaning any hurt to any position of high authority, was completely politically motivated but that is beside the point. The point is, of course they are trying to get out of the situation so they said we made a reservation. So, my first point is actually an understanding, he cites the fact that look Germany commented on our reservation and they

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did not oppose our reservation - That was not true because as I set out here Germany made that clear when responding to the US understanding and this was what it said, I quote “the understanding did not touch upon the obligations of the US as State Party to the Convention”.. That is my first point, 2 points I am making with regard to this - first it is an understanding, not a reservation and his attempt, Yoo’s attempt to justify the fact that there was a reservation to which the world, including Germany, had no objection is entirely incorrect on the facts. Because Germany said no such thing and Germany in fact made it clear that that particular understanding did not touch upon, and they used the word “the understanding did not touch upon the obligation of the US”. And of course I make the point which I have gleaned from the general comment on the issue relating to reservations made upon ratification by accession on the basis that it is a reservation and this is my Paragraph 13 “Reservations that undermine and render futile the effect of the fundamental provision of a treaty which sets universal standards for the protection of human rights are clearly unacceptable, international customary laws on treaties nutralises the effect of such reservations by rendering them severable and void”. So you enter into a treaty where the fundamental obligation is you shall not do this. And then you reserve and say, can you reserve and say, “I shall be able to do this”. Simply doesn’t make sense. You have excised yourself from the very basis upon which the Convention is being entered into. It says no torture, no exeptional circumstances, and you say, “No, no, no, I enter into this treaty which has this central fundamental objectives and then say, but however, I can exclude myself”. You simply cannot do that. Doesn’t make sense. So what will happen then to the treaty, what happens is if there is a fundamental obligation from which you seek to exclude yourself,that then becomes, in law, severable. So, the rest of the, if there


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are areas in which you can in fact hide can have some kind of effect, that is fine, but you cannot exclude yourself from what is essentially the fundamental - then you don’t become a party to the convention. You cannot seek to undermine and destroy the fundamental construct of a carefully negotiated, carefully crafted international treaty in this matter. Simply unacceptable. And this is taken from the general comment on issue relating to reservations made upon rectification or accession by the UN Human Rights Committee and the citation of the document is set out. Shad :

Mr. Nijar, perhaps the impact of reservation for our understanding would be that national Courts would feel themselves bound not to apply the reservation, but international law it would be a different matter. What’s your opinion on that?

Nijar :

Yes, I entirely agree. Even in national law as far as United States is concerned, because United States under the 4 th War Crimes Act there is a crossreference to International Conventions. So, even there I think it is not open to the nation state, to somebody within the nation to exclude themselves. That is why the President of the United States sought an opinion from his Attorney-General and his Assistant Attorney-General because that was the precise question that was posed to John Yoo and John Yoo, the Assistant Attorney-General dealt with this question. The Memo was issued to deal with the question: Whether interrogation methods used on alleged Al-Queda operatives which were lawful under US Statutory Code could lead to a prosecution? But of course, as the distinguished member of the Tribunal has rightly commented, may be within national law, I am not so sure but there even under the Law Crimes Act there are provision and indeed I think there would be actions in due course within the

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national jurisdiction. They have already been instituted within the United States and Britain itself by the detainees who will also be making presentations here to challenge, and challege effectively, because in this day and age, barbarism of this incredulous proportions cannot possibly be countenanced. And civilized human beings that will be the thrust - some of these people who have issued these Memos, politically motivated as I say have risen to Judgeship positions but there must be surely within the Judicial framework of these countries, judges will not accept this kind of position. So that is then a separate question. So, I come back to the point that therefore when we look at the cumulative effect of all these Conventions that I have cited, these 3 main ones. Reads Paragraph 13 - “The Rules of International Law are clear beyond … there is an absolute prohibition against any form of torture”. It matter not what the circumstances are, it matters not what the status what the captive says, whether he’s a criminal, he’s a warrior combatant, lawful combatant, unlawful combatant, Al-Queda militant, private contractor even, who’s caught in the cross-fire there is absolute prohibition. And anyone who commits, the perpetrator of any such act of torture is a criminal in the eyes of international law, anyone who threatens is a criminal, anyone who is complicit in it is criminal in international law, and complicity will include in its grasp all involved right up to a commanding officer, a commander-in-chief, or a head of state. Hence the question that we pose before this distinguished panel. Even if you look at the 1977 International Convention for the Suppression of Terrorist Bombings - I am referring to my page 4 Paragraph 14 of Submission. Now the US became a party in June 2002, after 9/11. Now this Convention made it a criminal offence to bomb a public place


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or a state or government facility with an aim of causing death or destruction and there are more than 120 state parties including United States and Britain and they agree by this treaty to subject any person who is thought to have engaged in terrorist activities to the criminal process by prosecuting him or extraditing him to a treaty that will, or extraditing him to a country that will prosecute him. Nowhere in the 1997 Convention does it say that these criminals are exempt from the ordinary protection of the law, or that you can torture them or treat them inhumanely. Quite the contrary, the Convention explicitly guarantees free treatment to any person who is taken to custody under its provisions. That includes the rights and guarantees under applicable provisions of international law, including the international law of human rights. Bhagwat :

I have a question Counsel. You are approaching this issue with clarity but can you explain how did members of the legal fraternity, lawyers, individuals with legal training, taught jurisprudence and justice, how you explain these Memoranda, were they extracted or were they voluntary?

Nijar :

This is a difficult question to answer - There are human beings then there are human beings. There are lawyers, and then there are lawyers. There is expediency. In the name of expediency, how many things have been done? Now, we can harp back, this is not unexceptional in the jurisprudential history of the United States. In 1920 there is a report upon the illegal practices of the United States Department of Justice. United States Department of Justice is crowded with lawyers of the incredible ingenuity, they all come from Harvard and Yale and Columbia and Stanford. As do lawyers in other places who have differing view-points, but this Justice Felix Frankfurter and Roscoe Pound who are international jurists of incredible proportions. Now this is what they said because there were a lot illegal practices

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that were being advised by the Department of Justice and I just wish to quote from this report. In 1920 “since these illegal acts have been committed by the highest legal powers (legal brains) in the United States, there is no final appeal from them except to the conscience and condemnation of the American people”. So, at the end of the day it’s the people, the American people. Hence the logic of a war crimes tribunals grounded in the conscience …

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Bhagwat :

Would you repeat that

Nijar :

I will repeat that. “Since these illegal acts have been committed by the highest legal powers in the United States, there is no final appeal from them except to the conscience and condemnation of the American people”. And then this comes, these Memos are issued by the AG, Assistant AG and this line will come to haunt them, I think, forever. It reads from the report “American institutions have not in fact being protected by the AG’s ruthless suppression”. I repeat, “American institutions have not in fact being protected by the AG’s ruthless suppression”. AG, the highest law officer of the land and this he’s being condemned not by mere mortal such as I but by Justice Frankfurter and Roscoe Pound, in whose hands, under whose guidance we have learned of the highest juristic principles with awe and respect. On the contrary the report says, “Those institutions have been seriously been undermined and revolutionary unrest have been vastly intensified. No organizations of radicals acting through propaganda over the last 6 months could have created as much revolutionary sentiment in America as has been created by the acts of the Department of Justice itself”, and that is why, distinguished Members of the Tribunal, gathered from all parts of the world, you have come from far to deal with precise question because such outrageous activities that violate against the very fundamental precept of every institution, of every


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bastion upon which institutions are based, like the Rule of Law has been violated. So can we stand idly by? That is why Tribunal has been constituted, that is why we have lent ourselves to a War Crimes Commission. That is why we have personages of very eminence who are involved in sponsoring this whole activity. And so, I hope I have satisfied, in some perhaps obtruse manner, the question that you have posed to me as to how can this happen. How can this happen? This is the question that is being pondered. You know, as we heard testimonies yesterday of the cruelty, the degradation that is being inflicted by ordinary human beings, not mad-men, ordinary civilised human beings, we ask ourselves, how can this have happened? And so, but it has happened, history, the Nazi Germany was served by some of the best legal brains Hitler and his, had at his disposal, the best legal brains. Germany at that time was extremely developed country. And so we have these quirks, we have these moments where political expediency, we have people who forget. That is why Nuremberg, the judgment at Nuremberg becomes very important. Boyle :

Nijar :

Counsel, will you or your colleagues then be making submissions on the relevance of the justice case at Nuremberg where they prosecuted Nazi lawyers and judges for doing some of the same type of behaviour as occurred here? We, I will not be going into that detail except to show that the Nuremberg judgment was a watershed that paved the way to a refusal to grant immunity, because even if you look at some of these conventions there is no mention of immunity, so sometimes it has been suggested that the diplomats who have negotiated this, like the Torture Convention could not have intended to waive aside the immunity, it is silent on the question of

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immunity. But it is our respectful submission, that Nuremberg was that critical turning point after which no immunity, no exemption can ever be claimed. Although it was a victor’s charter that set up the Nuremberg’s trial, but it’s effects …

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Boyle :

While I’m not saying it’s necessary now, but do you think somewhere down the ways that we could get a submission from Counsel on the relevance of the justice prosecution of Nazi lawyers and judges to the proceedings here, the American Attorney-General, and 2 Attorney-Generals and their lawyers, would that be possible at some point (Nijar: Yes, yes, yes of course) Not now, but at some point since you’ve raised the issue

Nijar :

In fact the submission by the counsel in the Nuremberg trial, Jackson, was extremely powerful in blasting away the kind of shields of immunity that were being created up to that point by the defence counsel in that case, which was so ably represented in the film “Judgment at Nuremberg”.

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Distiguished members of the Tribunal, the upshot is, there can be no exceptions when we look at the rules taken together, international rules reflected by these treaties, by these conventions, that is why we come to the White House Memo now, dated Feb 7, 2002 whereby the United States President determined that the alleged, he categorised all those captured in Afghanistan as Taliban and Al-Queda detainees and determined they were unlawful combatants to whom the Geneva Conventions don’t apply. But in the light of my submission, this is entirely misconceived and cannot relieve the President of the United States of America from the crime of torture as a war crime or a crime against humanity. Now, it’s very interesting, the United States President said, “I declare these people to be such and


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such and I also decide that they are not subject to the Geneva Convention”. He decided. One man decided. An Executive decided. The question is: Can a person with a vested interest decide himself as to the status of these people and then to accord certain rights and to remove that rights? Now if you look at Article 5 of the 3rd Geneva Convention, here there must be a judicial determination of the status of the persons concerned. How can it be that a person writes his own legal consequence of the status, he makes a determination, the Executive makes a determination, violates Article 5 of the 3rd Geneva Convention because the 3rd Geneva Convention mandates that there be a determination of some sort, a kind of judicial determination of the status. The US has ratified this convention. How can it exonerate itself from that particular provision? Now the US Army Regulation, that I’ve set out in my paragraph 16, the US Army Regulation 119-8 of 1977 states clearly that, “Detainees are entitled to prisoner of war protection whenever their status is not clear”. There has to be judicial determination. If there is a doubt as to their status, then you accord them protection. This is consistent with the basic fundamental rubric that “Where there is any doubt, you always err in favour of rights, not in favour of depravation of rights”. Now, the detainees at Guantanamo, many of whom are here, have challenged their detention, which means that they challenge their detention and some have asserted prisoner of war status which means that this is an active and a live issue that is being disputed. So, this requires, what, this requires judicial determination. Not the President of the United States saying, “I say he is so and so, I say he’s not so and so”. The world cannot be ruled by the say so of a single man, no matter from rich powerful nation he emanates, because the culture, the tradition, the rights fought for 50 years cannot be deprived, waived away by the stroke of a pen of a man whom

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we now accuse of being a criminal in the eyes of international law.

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Bhagwat :

Counsel, is it an individual or is it a system consisting of individuals?

Nijar :

It is, there is, I would like to believe that in the civilised world, and I shall show presently, even if you take decisions of Israel’s Supreme Court for example, and I rely on this to show that there is even indeed wide spectrum of division of opinions from one end of countries that are completely libertarian to those others who may be seen in the eyes of the law to be sometimes self-serving, even in that, there is a consistent thread that runs which says that these activities are being perpetrated not by the system as a whole, not by the United States system as a whole, but motivated by a particular political trend which then encompasses within their fold - Lawyers, doctors and other perpetrators, army chiefs, army generals in the field and then goes right down to that man then who rapes the detainee because that is the ethics, that is the ethos that is spelt out by this group of individuals who subvert international law, who subvert national law, and who subvert the national ethic. There is enough evidence as when the President of the United States sought to insulate itself by locating these people, just think of that, they located themselves in this corner of Cuba, called Guantanamo Bay, what is the purpose? Mischievous. Evil purpose. Why? So that it will not be within the reach of the United States system, judicial system, to prevent it from being part of that well-grown judicial system in United States, which, would surely declare this out, and this is known by these perpetrators, hence the location, hence the argument that it cannot be subject to US law, this is the initial argument, it cannot be subject to US law because it is located, these people are not within the United States, they are located outside.


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But the judicial arm reached out to them and said, “No, you are controling it, wherever you locate them, you are controlling it”, and so they are within the reach of the United States, an so the judicial system it is also not a system as such the judicial system itself was the one that was, and these Memos make it quite clear that they want to insulate themselves not only from prosecution from the International Criminal Court for example, because, as I will presently show, they can be individuals although the United States is not a party, but, the fact remains that they wanted to insulate themselves, and so they tried all kinds of contrivences, and this is one of the contrivences, these Memos that were assisted by the then Attorney-Generals. These were contrivences to place themselves out of the reach of international law. So arrogant has power becomes sometimes in the hands of people that they can insulate themselves, that they can conceive of a plan to insulate themselves from, as I said, 50 years of development of international humanitarian law. Now if we look at the Memo itself, it’s a Memo that is bristling with contradictions. Now, if we, the Memo is dated Feb 7, 2002 and the subject is, ironically, “Humane Treatment of Al-Queda and Taliban Detainees” and it says, “I accept the legal (this is the President of the United States, then President of United States) conclusion of the Department of Justice and determine that none of the provisions of Geneva apply or conflict with Al-Queda in Afghanistan of elsewhere throughout the world, because among the reasons AlQueda is not a highly contracting party. It’s not a high contracting party”. Now, the ICJ in a case in 2004, I forget the name, I will get the reference, had argued, or rather Israel had argued before the ICJ in a case in 2004 that the Geneva Convention would not apply to Palestinians in the Occupied Territories because Palestine had never been a sovereign territory. It is merely an

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occupied territory. The Convention, it said, only applies to State parties. They were in fact saying that the Palestine Liberation Movement, the governing authority in the West Bank, is not acting for a sovereign State because there is no such thing they are saying, “What is this group of people, you know, calling themselves, they are just a political party”. You must apply high contracting parties, not to anyone else.

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ICJ rejected this argument, and rightly so. It said that, “The Convention guaranteed the protection of civilians in times of war, even in Palestine”, and as the trial will unfold before, in due course later, these were also civilians. So you cannot get out of it - the pronouncement of the International Court of Justice, 2004, very clear, you cannot get out of it, this simple device.

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Bhagwat :

Was it the advisory opinion on the war in …?

Nijar :

Yes, right. Yes, it is. I will supply the complete citation. So this question of high parties and not parties is an irrelevant question, and has been so determined.

Boyle :

Counsel, if I remember correctly, maybe later on we could get a submission I don’t think it’s necessary now I think the World Court in the Nicaragua case in 1986 first stated that Common Article to the 4 Geneva Conventions applied to all armed conflicts and it was that ruling by the World Court then that was accepted by the United States Supreme Court in the Hamdan decision so maybe when someone has a chance from the prosecution team, we could get a look at submission on that, (Nijar: Yes) not that it’s necessary today, as well as the advisory opinion on the wall.

Nijar :

Yes. I think that will form the submission by the prosecution in due course. I am thankful. But now,

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now the other point that is made is, so he first determined, and as I have already said he has under Geneva Convention 3, he has no right first to exclude them, he has no right to determine their status, the Memo goes on to say, “I accept the legal conclusion of the Attorney-General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly I determine that the provisions of Geneva will apply to our present conflict with the Taliban”. Now this is interesting, you see, because he says, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I’m not going to do that, and therefore I determine that the provisions of Geneva will apply to the conflict with the Taliban”. So he uses Afghanistan and Taliban interchangably.

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And then he goes on to say that the Taliban detainees are unlawful combatants and therefore do not qualify as prisoners of war under Article 4 of Geneva. Now the contradiction is this: Because you now equate the Taliban with Afghanistan in that first paragraph - that means that’s a nation State. The Taliban was the effective de jure Government at that time, not just de facto, de jure Government, and the you say that the Taliban detainees are unlawful combatants. Now you go and wage a war against a country and you make that clear in Paragraph 2, and then go and declare that the country against whom you are waging a war, and which constitutes the Government are therefore unlawful combatants - I don’t see how - this cannot be so glaringly inconsistent to then so declare. And then because Geneva does not apply to our conflict with Al-Queda, Al-Queda detainees also do not qualify as prisoners of war.

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values as a nation, values that we share with many nations in the world call for us to treat detainees humanely, including those who are not legally entitled to such treatment”. So he makes a commitment, even those who are not legally, in his eyes, entitled to such treatment, “Our nation has been, and will continue to be a strong supporter of Geneva, and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely,” and then there’s a qualifier, “and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”. So he put a qualifier, a little qualifier there.

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So he says that we must, we are able to treat them, humanely but he puts a qualifier, depends on our military necessity, but look at this paragraph, the next paragraph says, “The United States will hold States, organizations and individuals who gain control of United States personnel”, that means others, the Taliban, which may capture the United States personnel, “responsible for treating such personnel humanely and consistent with applicable law”. No qualifier for them. So, I have a qualifier, you have none. The arrogance of power. To treat, in such rough-shod manner, 50 years of international humanitarian law. And then they go on to talk. Such is the status, such is this document, this document that then paved the way for this cruel and grisly story …

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Counsel, just a brief interruption. The difficulty that the President was facing, and so were we, was that you had not placed on record the necessary document, so could you kindly place this Memorandum on record. (Nijar: Yes) You have to amend your opinion in your own handwriting (Nijar: Yes) and hand it over, we grant you permission (Nijar: Yes) and this Memorandum, please kindly attach to your advisory which you


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have sought (Nijar: Yes) attach it (Nijar: Yes, I will do that) and say that you are annexing this particular Memorandum that you have made out.

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Yes. And if you have the documents, in the relevant, maybe I will guide you because there are a huge number of documents that were there, so I didn’t want to labour and we will be, but it’s at page 659, 66 …

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Counsel, you cannot put the Tribunal to a searching … (Nijar: Yes, entirely entirely, yes, yes, of course) You must attach this memorandum (Nijar: I will) that you have just read, which is the decision of the President (Nijar: Yes) Please attach it and say that you annexing it to your advisory which you have sought (Nijar: I will do that). You amend it, we want to have in your own handwriting (Nijar: Yes, I will do that) to be handed over to the President during recess I will do that and I thank you for the guidance on the matter. Now, the other point I want to make about this memo is they talk about Geneva. But what about the International Covenant on Civil and Political Rights to which it is a party. Is it not bound? Conspicuously absent from this is their, that particular convention which is binding on them. So what about that, ok Geneva is set aside, what about this one which says no torture of any person? There is no mention of the 1984 Torture Convention which says no torture, no exceptional circumstance. On the advise of lawyers, Attorney-General, Assistant Attorney-General this particular document. That omission is glaring, and that omission itself is an admission, in my respectful submission, in our respectful submission, that the President of the United States was mindful of the fact that under no circumstance can it avoid the

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mandatory requirements of the Torture Convention and the ICCPR. Now, irrespective of whether …

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Boyle :

Oh Counsel, one, one point. If I remember correctly, and you can correct me if I’m wrong, White House Counsel Gonzales sent a memorandum to President Bush saying, “We have a problem here under the Geneva Conventions and the US War Crimes Act that incorporate the Geneva Conventions and as your colleague pointed out, make violations a felony punishable by death”. And Gonzales then tells the President we can solve this problem by you unilaterally exempting yourself and everyone else by ruling that the Geneva Convention simply doesn’t apply. I think the reason why they did not refer to the ICCPR or the Torture Convention was, if I remember correctly, it had not been incorporated under the US War Crimes Act, and thus made a war crime law. So they came up with this subterfuge, to try to exempt themselves unilaterally because of their fear of prosecution under the War Crimes Act. Doesn’t that make all of this and all of them in conspiracy to violate that Geneva Conventions? To commit war crimes in violation of the US War Crimes Act?

Nijar :

It does. Entirely. And your observations are completely in your hands on that point because that was the whole reason - the War Crimes Act made an interface and said that, “if you violate any convention,” and that was in the context of the Geneva Convention, “then you have committed a war crime,” and this a US law, and it’s punishable with death, and therefore, how do you avoid this particular obligation, and then this forensic ingenuity, this contrivance - to say “I declare myself out of the ambit of the Geneva Conventions”. Precisely. In fact it is set out very clearly in a paragraph of the, of my submission, this particular objective, the motive of the issuance of this memorandums - Yes, in my paragraph 19, “The White House Counsel in his memo of January 25th”, that’s in my paragraph 19 at

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page 4, “the White House Counsel had earlier in a memo of January 25th 2002 explained the need for this exemption - otherwise,” said the memo, “US officials involved in harsh interrogation techniques could potentially be prosecuted under the War Crimes Act,” a US law, the Federal War Crimes Act that carries a death penalty if the Geneva Conventions were applied.

So, it was a clear attempt, and I, the thought had not crossed my mind, and I am grateful that this was in fact an incredible conspiracy to subvert the law and to commit a crime to justify the commission of an international law crime against humanity. I think that makes this very clear, and we have, for example, the January 26, 2002, a member of the government itself, Colin Powell who wrote to the Council to the President, Assistant to the President for National Security Affairs, on the applicability of the Geneva Convention to the conflict in Afghanistan, so he commented on this draft Memo. I just summarise here because it’s quite long. He sent a cautionary memo to Gonzales, the Attorney-General, in which he warns of the consequences of opting out to the Geneva Convention, and I’m going to quote, he said, “It will reverse over a century of US policy and undermine the prosecutions of the war for our troops. It may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops”. So he added a cautionary note - I will make this memo also available, it’s a 4-page memo (Bhagwat : Will annex this memo also) Yes. So he added a cautionary, so it is not like the reason why it is a conspiracy - it is not like it was clear in the minds of the Attorney-General and Assistant Attorney-General that this is the way to go and we are very clear and there was a clear and present danger there was a threat and we are entitled to act like that - they were very mindful of the fact as to what they were doing and their subversion and within their ranks itself there was caution, within

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the military ranks there were caution. If I proceed I will show how Rumsfeld himself had to withdraw for awhile some of the terror techniques, interrogation techniques, because of a disquiet expressed by his own officers in the field who said, “Look, we are concerned. Tomorrow, you are no longer here but we as the army will continue to operate as an army whereas you will be gone, you will be flat, you will be on speaking tours, collecting the money, huge sums of money, which is a fact, for example, like Tony Blair”. So the point is: That these generals who were there to stay, who are career, career-ist, were very, and they put forward, as a result of which they have to set up, Rumsfeld had justified it, he had set up within his own division a working group which submitted a working group report to then justify the techniques, and even then, as we shall presently show, the techniques that were applied on the captives far exceeded even those techniques, there were some 11 techniques that were authorised crouching position, you know, putting yourself, as Mr. Moazzam Begg and other show, you know, putting themselves in positions that are contortionist position which they have to endure and put themselves in for days on end. So, this was a conspiracy. This was a conspiracy. I think the cumulative effect of all this was to provide an opinion which was geared towards subversion - it was not an independently arrived at opinion because within the ranks, within their own ranks, they were saying, “Watch out, you can be sentenced to death. How do we side-step that. Watch out, our troops” as Colin Powell said, “you can be subject to this, let’s how do we step out of this”. So he had all these maneuvers that were started off well before Jan, Feb 7th, 2002 - Colin Powell’s cautionary note was issued in Jan 26th. But the other point is, as the UN Committee, UN Human Rights Committee, said, “Even aside from


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humanitarian law there is a human rights law”, and in my paragraph 18, the Human Rights Committees’ notes in their 2004 report, my page 418, “the ICCPR which is the International Covenant on Cival and Political Rights applies also in situations of armed conflict to which the rules of international humanitarian law are applicable, while in respect of certain covenant rights more specific rules of international humanitarian law may be specifically relevant for the purposes of the interpretation of covenant right, both spheres of law are complementary not mutually exclusive. That is why they had to consider this memo, whatever their motive as, has been pointed out, but then we have the other international law to which they are already a party so you can avoid the death penalty here but you can’t avoid the death penalty somewhere else. So, this is what happen, when you try, you fall between choices, when you try to avoid the law, and at some level, something happens, something un-clicks and you land yourself in this problem.

Now, I had said that I am trying to suggest that that I have suggested earlier on that the widest range of opinion throughout the judicial, this is to answer that question, widest range of judicial opinion throughout the world made it very clear that you cannot avoid the obligations, that there are no exceptions allowed in international law simply no exceptions, and I said that I would quote the Israeli Supreme Court, in a landmark decision, and I quote that because some people sometimes suggests that judiciaries everywhere are subverted by the system itself and this is my paragraph 20, this was a decision of the Israeli Supreme Court in 1999. It’s a judgment concerning the legality of general security services interrogation methods, and that particular quote that I have there is reproduced from International Legal Materials Volume 38, bracket … of the year 1999, page 1471.

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Now this ruling prohibited the Israeli security services from using physical abuse on suspected terrorist …

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… not acceptable to it, and not all practices employed by enemies are open before it. And these words have a very strong resonance today, especially in this case, this is what he said, “Although a democracy must fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties”. On the question of whether necessity would apply they said “that’s on a case by case basis”. They cannot give the general blanket - that would have to be decided on its merits, if and when it arose. What the State could not do, said the Court, was invoke a necessity argument to justify directives and authorisations which would use liberty-infringing physical means during the interrogation of those suspected of terrrorist activities. The Court noted the absolute prohibition on torture and cruel, inhumane and degrading treatment in international law and this is what it said, there is no exceptions, “There is no room for balance”. That’s out of the equation. You cannot put human rights, rights to prevent against torture on any balance in respect of expediency. It’s simply out of the question. And this is Israeli.

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Counsel, excuse me, but this is very high-falutin’ language by the Israeli High Court, but we know for a fact Israel has always tortured Palestinians most brutally in violation of the 3rd and 4th Geneva Convention … war crime. They authorised it in the Landown Commission Report 1984 and despite this language by the Israeli High Court, they still torture Palestinians today as we speak, and High Court, over the years, have routinely sanctioned,


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authorised it, approved, various types of war crimes against the Palestinians even as we meet here today. Is that not the case?

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That is entirely true. The reason why I’m citing this case is to show that there is a clear recognition, even in Palestine, that what is going on, this is a Supreme Court decision, that what is going on is clearly a violation of the law - that’s my limited purpose to show that whatever is going on now in Palestine, is within their own terms, a recognition of the fact that it is a clear violation of the Rule of Law. So even when an enemy or when a perpetrator cites this and himself says that it cannot be done, and then, of course, it then sanctions in various contrived ways, it knows then, and we can be guided by the fact that there is a clear understanding. That is how jus cogens arises, where you know you are committing the torture, but you try to avoid its term, I say no no no I don’t do it because actually in this case it is this and in this case, that’s how customary international law jus cogens, sorry

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Counsel, how can we use the language of the Israeli Supreme Court when what it is really doing is to camouflage very serious criminal offences (Nijar: Yes) against a whole people?

Nijar :

Yes, I am not going to defend the Israeli judiciary on this of course, woe betide me for doing that; but the point I’m just making is that, what I’m saying is that in areas where they violate so violently the rights, there are these voices, that there are these pronouncements to acknowledge the fact that this is clearly wrong and so this is the camouflage and this is where jus cogens comes in because jus cogens is an obligation in international law to abide by a certain norm, it becomes preemptory, from which there can be no derogation whatsoever, jus cogens, and it gives rise to jus cogens, it gives rise to ergo omnis which is an obligation in law to abide by,

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you have an obligation after that, what does jus cogens - because there is a preemptory norm you recognise, and here, of course, Palestine recognises because they have their own pronouncements and it’s based on preponderant of opinion that does not be, you do not have to be a party to it, that’s international customary law, and, then you have an obligation - What is the obligation? You must try the perpetrators in your Courts, or if there is an application to extradite and have him tried elsewhere, you have an obligation - you have an obligation to try it in your Court and you have an obligation if there is an application for extradition for him or her to be tried in another Court then that obligation will apply. So I use it for that limited purpose - to say that, you recognise, you have an obligation and this obligation translates to an obligation in international law. Which means, that if today an Israeli Prime Minister comes to any part of the world, on the basis of jus cogens, that State has an obligation, not a choice if the jus cogens is established. It has an obligation to arrest that person, obligation to charge it, and/or if someone else then comes in, then they have an obligation to allow the extradition so that he can be charged elsewhere, in fact this was the main thrust of the Pinochet 1st case - the 3rd case was based on the treaties, central question was the treaties and conventions - the treaty on - but the 1st was very clearly on this basis, that Pinochet could not escape because the law had to be allowed to run its course in England because of this obligation. And so, and then if you look again, just to quote the, at page 5, the US Army’s own field manual 3452 - and this is to show an understanding that these conventions apply - in my paragraph 21, you see when the first batch of detainees arrived in Guantanamo, that was, as we have heard, January 11, 2002, when the first batch applied, arrived,


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in Guantanamo, they were subject to the army intelligence interrogations. And this army field manual, and they were governed by this army field manual 34-52 and that made clear that the Hague and the Geneva Conventions would be adhered to, and I will quote that Army Manual, this is what the Army Manual said, Chapter 1 section 34-52, “The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorised nor condoned by the US government. From both legal and moral view points, the restrictions established by international law, agreements, customs, render threats of force, violence and depravation useless as interrogation technique”. Now this is their own manual as applied to the first group of Guantanamo detainees who arrived. What more need we say? International law of agreements, customs must be adhered to. US government, hence the theory that this were subverted, and as I say in my paragraph 22, that advise, rather sadly I say, lawyers for the White House commenced a series of actions to their advice to subvert this at the head of … it is precise that the military manual has set out as part, an integral component of the United States of America. And then this starts the first memo. The first memo was by John Yoo, the first proess of this conspiracy to subvert by the Deputy Assistant Atttorney-General. So here was precisely, they wanted to deal with the question. Whether it could lead to a prosecution under the international Criminal Court, or violate the 1984 Convention on Torture, these are the 2 questions, and the advise was, number one, they said, “International Criminal Court is not binding on the US as it is not a party to it”. That’s fine, I think that’s not incorrect for John Yoo to advise. Second advise, and US nationals could not be subject to ICC prosecutions is not correct. Why do I say

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that? Because the individuals have not, but State are parties to the ICC. Now, if a person commits a crime, commits a torture, a war crime, or a crime against humanity on the territory of a State that is a party to the Statute, then, of course, he can be prosecuted at the ICC. That’s very clear. So John Yoo’s advise on the second point on which President Bush rested his advise appears entirely out of line with the law. Now, on the Torture Convention, this is what John Yoo had to say: He said that “since the Convention defined torture in the exact terms as the US Federal Law, and the Convention has a lower threshold, if an act was not defined as torture under US law, then it will not be so under the Convention”. Now, to paraphrase: What he’s saying is, “Look, we have a national law dealing with torture; we have an international convention dealing with torture. So it’s the same subject matter”. And then, of course, the US Torture Conventions is broader in scope and ambit, he said, “that we have to look at our” - because it covers the same topic, the same subject matter, so, “we are entitled to look at our law that deals with torture and abide by it”. And that made it easier to have some elements of torture which were prohibited by the torture convention. In our respectful submission, this view is clearly erroneous because in the event of a conflict, I mean this is trite, in the event of a conflict between a domestic law and international law, domestic law must necessarily give way when it’s on the same topic because you have an international obligation, you have made and international commitment this is trite, by the way. I don’t think I need to submit on that. Then we have the next, so we have a decision, we have the memo from John Yoo, Deputy Assistant General, and then we had a, of the same date, we have a memo from Jay Bybee who was the boss


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of John Yoo. Now this memo dealt squarely with the standards of conduct of the 1984 Convention Against Torture as implemented by federal law. Now this memo is very critical because this was the memo that helped to provide ex post facto rationalization for the harsh interrogation techniques procedures used by the CIA on so-called Al-Queda leaders. Now this memo starts off on the same basis: It says, “Yes, US law trumps international law, US law is superior to international law,” which is, of course, is incorrect. And then it went on to say, “the standards of torture, the torture will only cover the most extreme acts limited to severe pain which is difficult for the victim to endure - the intensity akin to that which accompanies serious physical injury akin to death or organ failure”. Basically what they are saying is, “ok, we only torture to which we can be, which must be excluded, is that which is of a very extreme form which results in death. No death, anything short of death, anything short of organ failure is, by the law, exempt”. Bhagwat :

Is there any such definition of torture under US law? I don’t think so.

Nijar :

Er, well, there is; it’s not. But there some qualifiers so this is how this Assistant Attorney-General identified, and I can provide the Acts which will show and for phychological or mental disorder, it had to be of lasting kind, to show that it lasts, the kind that is post-traumatic strees disorders anything that doesn’t cause that, and anything that does not show, then the standard is you can continue to mentally abuse, to mentally distress the particular person concerned. And, then this Jay Bybee said, “Congress can no longer interfere where the President’s conduct governing interrogations of combatants”. Congress, out of bounds. “The criminal law defences of necessity and

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self-defence could justify the interrogation methods needed to prevent a direct and imminent threat to the US and its citizens”. This overrides, again, it says, overrides the torture conventions’ absolute prohibition. The defence of direct and imminent threat, and I have already quoted the torture convention which says, “No exceptional circumstances”. And it says that this absolute prohibition is not applicable, said the Assistant Attorney-General, because it has not been included in the relevant federal law. This implies in the defence of necessity of war-time defence of torture is permitted. So, direct and imminent threat overrides everything; the absolute prohibition on the torture convention does not apply which means domestic law, you have an international law obligation, you can ignore that and raise these kind of defences. Now just even looking at this whole question of “direct and imminent threat”, you mean to say at the time when these, and now it has been listed - several thousand detainees were captured, when the United States had occupied, in very grandious manner, Iraq and occupied also Iraq and Afghanistan, and brought all these people, under these conditions, to Guantanamo and to several other places, that, there was imminent danger to the United States at that time? Just looking at it factually - it stretches the imagination to ridiculous proportions. Imagine that you could justify on the fact that it’s imminent what is imminent? Imminent - instant, overwhelming, leaving no choice or means - you cannot negotiate, cannot shout, things happening, going to happen, about to happen, bomb is about to drop, there is no time to go and negotiate; leaving no choice or means, no moment for deliberation, you can’t even think anymore, you cannot deliberate, you cannot call - and here we have them exchanging memos, deliberating. And yet using this defence that it was


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so imminent that we could not adopt any other means. So that is why, it is our respectful submission, that even applying their own criteria, it simply did not exist, I mean, it’s fiction of the wildest imagination, plus, to think there was, at that time, this imminent danger posed by this. So absent this, even by their own criteria, these conditions, then clearly the acts of exempting become illegal. You cannot conjecture on future events. I mean, you must draw a distinction international law is replete with examples of imminent threats and actions taken to avoid imminent threats, and preventive threats. Of course, if you are saying that this could happen in the future, you want to prevent this from happening that’s different from imminent. We take various measures to prevent something from happening, that’s different. But it’s only imminent, not prentative steps that allow you to apply this criteria for, for doing this kind of actions and exempting yourself altogether that’s by their criteria, although there is no absolute prohibition allowed. And so, on the basis of these memos by these high officers, you have then the techniques that were then began to flow in, “Now that we are exempt, let’s implement the techniques”. And so started the memo of October 11 issued by Lieutenant-Colonel Diane Beaver, this is in my paragraph 35, a US Army lawyer, who said then, “Ok, now in the light of this, all international obligations, they are irrelevant to our techniques, so we can do a very forceful, retrain on torture, and we have our United States President, you know, covering our, bestowing his protections on our actions”. Now, this memo that was issued, President Bush’s, she said, “President Bush’s executive order declared detainees were not prisoners of war, therefore the Geneva Conventions did not apply. Also, no international body of law applies because of reservations they had entered, the treaty was not self-executing,” that

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means that treaty did not create any obligations in domestic law until there was a national law enacting the terms of the treaty. No mention, I would pause here to say, of international customary law, which also is binding on parties. So on the basis of such advise, I come to paragraph 38, memos on extended interrogation techniques were issued by Lieutenant-Colonel Gerald Pfifer(?) and Major-General Dunlaber(?) both on 11th October, 2002 - and they divided them into 3 categories, any of these categories violated the torture convention and the requirements of the Geneva Convention. Now we note here, Donald Rumsfeld, the Secretary of Defence on various dates from December 2nd onwards authorized the techniques that were then regularly used in Iraq and Afghanistan and which were clearly crimes against humanity. Now this is what the military, which included the General Counsel - General Counsel means the lawyer of the Department of Navy - he began to question the legality of these techniques under US law. So after 6 weeks, Rumsfeld had to withdraw this because his own officers in the field said that, “We are not happy that we are protected against,� and these are lawyers, the lawyer of the Department of Navy; they were withdrawing, then again very defiantly, against the disquiet expressed by his own officers, Rumsfeld re-introduced them. And instructions were issued which allowed the list of interrogation techniques in Iran and Afghanistan. And we only have to look at this list to know that they were clearly outlawed, they were clearly crimes against humanity. These new techniques were introduced, as I said earlier, by the working group report of March 2003 commissioned by Rumsfeld himself that largely accepted the memos of Yoo, the Assistant Attorney-General and the Attorney-General that I have referred; and they all said the same thing:


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Geneva Conventions, inapplicable to alleged AlQueda Taliban detainees. Basically, they said, “We have the President’s authority”. Rumsfeld himself, and this will be important for the prosecution to consider, Rumsfeld himself approved all the techniques except 3: Hooding, mild physical contact and transfer to a third country. Addidional techniques, said Rumsfeld, could be introduced on a case by case basis. I pause here to say, that hooding was a fact of almost every testimony that we heard. So that, even that exceeded Rumsfeld own terror techniques, interrogation techniques. And paragraph 44 - by memo of September 14, the senior commander in Iraq authorized a set of techniqes authorized earlier by Rumsfeld - this included the use of dogs, sensory depravation, stress positions that we saw those hog-tied positions, yelling, loud music, light control and these were mildly altered by memo, subsequent memo. And as I said, there were some 11 techniques, but even these techniques were exceeded as shown by the testimony before us, and as no doubt, in due course will be presented when the Tribunal sits to hear cases. Interestingly, I make this point, they said that these techniques will not apply to Al-Queda Afghanistan and so on, Geneva Convention don’t apply there but these same techniques were used in Iraq where the US admitted Geneva Conventions apply. These same set of techniques were used by Army officers and are allowed to be used by Army officers. So what is the excuse then? When you yourself only exempt the Afghanistan scenario captives from the Geneva Convention. You don’t exclude this but this is a set to be applied by the commanding officers and were authorized and were known. Doesn’t make sense. That means clear defiance.

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And we have here the report of the independent panel, paragraph 44, the report of the Independent Panel to Review the Department of Defence Detention Operations, it is known as, named after the chairman, Schlesinger Commission of August 2004. So they refer to the coercive interrogation methods by Rumsfeld. I’ve mentioned Rumsfeld earlier I’ve been mentioning the President but I think Rumsfeld was directly in the forefront of furthering these techniques; and the Commission said that these techniques migrated to Afghanistan and Iraq where they were neither limited nor safe-guarded. This is the point I’m making: The same techniques migrate, that were applied to the Guantanamo migrated to Afghanistan, migrated to Iraq, and Iraq I mentioned because there the Geneva conventions apply.

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Boyle :

Counsel, wasn’t the use the word migrating though somewhat of a euphamism in that the general on Guantanamo in charge of torture was ordered by Rumsfeld to go to Iraq in order to, “Get …” Iraq. So it wasn’t just a case of migrating it was the order to do this.

Nijar :

Yes, in fact, according to Lieutenant-General Keith Alexander, the Deputy Chief of Staff for US Intelligence, Major-General Jeffrey Miller who was sent to Iraq, his mission was, “to help to get the most that we could out of human intelligence operation in Iraq as a whole”. That is a euphamism to say, “Do whatever you want under whatever circumstances to the prisoners, to the people who are captured there. No holds barred”. So entirely … entirely wrecked, Your Honour.

Boyle :

There was one other point Counsel, I don’t know maybe you will address it since I just got your submission this morning, but last spring, I believe, ABC News reported that there was a meeting, an on-going meeting of the Principles Committee at the White House itself consisting of Vice President

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Chaney, Secretary of Defence Condalezza Rice, the Attorney-General and others where they went through all of the torture techniques in the White House, at the highest levels of government, all the bureaucracies and specifically approved these techniques. And then an ABC News asked President Bush if he knew about the work of the Principles’ Committee authorizing all the torture techniques, and President Bush said he did and he approved of what they were doing. Doesn’t that bring us then a direct chain of command from the lowest levels all the way up to the highest levels of the United States government? Nijar :

Boyle :

Nijar :

Entirely, entirely, in your hands again. This is the chain, there was knowledge, there was the contrivances itself meant that they knew of the interrogation techniques that were being applied. Rumsfeld was a member of the inner cabinet. He was the one who then acted defiantly against the actual reports that were comiung in, which expressed disquiet. He commissioned the working group report, he then authorized these 11 techniques and he was the one who then, as he’s the Defence Minister, Secretary of State for Defence, he was the one who sent Miller out to Iraq itself. But according to ABC News, it was more than just Rumsfeld. It was Rice, and Ashcroft, and Powell and Chaney as well as Rumsfeld who were making these decisions including which techniques of torture, and also according to ABC News it was President Bush who approved what this Principles’ Committee was doing - he knew what they were doing and he approved it. So it was more than just Rumsfeld That’s right. We’ll try to get the transcript of that ABC and make it available to the Members of the Tribunal, I’m obliged. But you see, the whole point also is that there was so many, you know on the one hand they were making public pronouncements at

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that time that they will abide by it, at the same time there were contradictory statements from which they then said, “No no no, we’re not bound by it”. And so we have, for example, I have a quote here at paragraph 48, Condalezza Rice on December 7th, 2005, she said that, “As a matter of US policy the United States’ obligations under the Convention Against Torture which prohibits, of course cruel and inhumane and degrading treatment; these obligations extend to US personnel wherever they are, whether they are in the US or outside the US”. Condalezza Rice.

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But the same date Attorney-General himself stated that there were extra-territorial limits to the application of this obligations. So what happened? Congress stepped in. Congress stepped in and said, “Look, we’ve got to deal with this chasm, wide chasm opening up between policy, which is declared by Condalezza Rice, and the law, between law and policy, approving these techniques”. So they set out to enact the Detainee Treatment Act in December 2005. Now this is also where President Bush’s complicity is very direct in addition to that pointed out by Your Honour. And this, President Bush threatened to veto the Bill. Dick Chaney proposed, Dick Chaney was, Dick Chaney and the Director of the CIA, set at my paragraph 49, proposed a waiver on the basis of the President’s say so. So this adds grease to the mill, as it were, because it makes it clear that when they wanted them to close the gap and say, “Oh Condalezza Rice is saying that it must apply, and the law doesn’t apply, so let’s have a Detainee, the Detainee Treatment Act in December 2005”. Now what does the Act say? The Act says that, “No individual in the custody or under the physical control of the US government regardless of nationality or physical location,” Guantanamo Bay or whereever, “shall be subject to cruel, inhuman or degrading treatment”.


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And they, law specifically state that there shall be no geographical limitation on the applicability of the prohibition against cruel, inhuman or degrading treatment. What did President Bush do? And this is where his complicity is very direct. On, at the time of signing the law, as he had to do, he wrote that he would construe the ban, and I quote, “in a manner consistent with the constitutional authority of a President, and his powers as Commander-in-Chief” thereby reserving to himself the power to authorize illegal acts. Bhagwat :

Nijar :

What is the constitutional law, or administrative or any implication on such a signing note on a door, or a statute. This kind of a note which he had appended - that he would construe the ban in a manner consistent of the constitutional authority of the President, … as … as Commander-in-Chief. What is this? Does it have any kind of, any even remotely connected with any; can a Commander-inChief, can a President connect such a signing note to a statute, either in accordance with US or any other principles of constitutional In fact it’s trite that you can’t do that. So trite. It only has to be stated to be dismissed out of hand that you cannot do that. You cannot have Congress passing a law and you put at the side note, “Rubbish. I’m not gonna follow this. Depends on what I wanna say or do”. And so, on this part, about the treaties itself, we submit there is no basis in international law for a country to exempt itself unilaterally from the effects of a treaty or a convention which it has ratified, in other words, all acts of torture which constitute crimes against humanity remain committed, so any acts of torture against the detainees in US custody would give rise in international to prosecutions as crimes against humanity and all those individuals responsible from the actual officers inflicting

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the punishment to those authorizing these acts including the Head of State, Commander-in-Chief are complicit in these crimes and could be so charged.

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I have another couple of pages to go on the question, so this is on the question of the applicability to Geneva Conventions and the exemptions. Now I also want to deal with, very briefly with international customary law. I will not know whether you may want to pause at this point.

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Dato’ Kadir :

Yeah, I think this is a proper place to stop. How long you think, how much more time

Nijar :

I think I’ll take about another ½ hour at most, maybe 20 minutes.

Dato’ Kadir :

About 12 o’clock, it gives us about 25 minutes

Nijar :

Yes, I’ll finish it within that time. So now the first point is that: You are bound by a treaty, you have signed a treaty. You are obliged to act in accordance with it. Now you try to exempt yourself from the treaty. Can you or cannot you, and I have dealt with this question at some length to say that our answer is you cannot - that’s our respectful submission.

But the next question is: Regardless of this treaty, is there international humanitarian law, customary law which the whole civilized world is observing? So, what about that? Even if you exempt yourself, even if you say, “Yes, you can”, but what about all of this? Can you exempt yourself from them? And the short answer is that, “No”. You cannot, you cannot exempt yourself. You cannot be immunize yourself, insulate yourself from the application of international sovereign law, er international customary law.

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Now the point is: Sovereign immunity was given historically immunity was given. Why was it given? Because, you know, this is an act committed by a State, by a country, so you dignify a State. How can you have this State be charged by another State? So it was because of the dignity accorded to the State itself that you therefore said that, “We give you complete sovereign immunity and allow, so any act that you commit as an act is an act of the State and therefore it should not be subject to any prosecution in any part of the world either internationally or by specific Courts”. That was the rationale behind it. But, slowly, this began to change. First it began to change with regard to global commerce. For example, countries began to take part in commerce, began to trade. It was companies who are trading like say, maybe our Petronas, which is a national company and so on. Now then you go to another country where because you have not fulfilled your obligations they say, “Look, you know you must pay up”. You say, “No no, I don’t wanna pay up”. Why? Because I am an act of State, sovereign immunity. So trade was being subverted. So then the international community said, “Look, we have to develop this, this cannot be”. So the first inroad was made with regard to commercial transactions undertaken by State bodies, and when can you get immunity it depended on the State giving letters of immunity. So what happened? And the criteria was very, you know, was not clear. So what happened? The United States and Britain enacted laws which set out criteria in 1978 to say when you could create this kind of immunity in respect of commerce. Allright. But the application was often confusing and there were even some people who brought this exemption to even claim make civil claims in respect of torture and so on. But then, as far as global human rights is concerned, we dealt with commerce, as far as global human rights is concerned, the great changes of the 21st

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century has been this in-road to grant universal jurisdiction in respect of any offence against humanity and in respect of this they said, “Look, 2 things we are going to say. First is that individuals who exercise rights in respect of a sovereign State have, we can lift the veil to see is it really an act of the Sovereign or is it an act that cannot be countenanced and therefore you have violated crimes of humanity”. In other words, we are not going to allow this to be used for all time. And, then they developed, the 2nd development was to allow other countries, other States, for, in respect of human rights to be able to assume jurisdiction. Now these crimes were made then subject to what is called “Universal Jurisdiction” - the whole world had jurisdiction. Every State in the world had jurisdiction. And this protection that, you know, this is, I believe I’m a State, I’m the Commanderin-Chief, you cannot prosecute me anywhere and so on so forth, the first major in-road came in the Nuremberg judgment. And the shield that all these perpetrators of crimes did, international crimes did, the shield was removed by the Nuremberg judgment, and I just want to very briefly read, at my paragraph 66 to say why we cannot allow the exemption of individuals. And this is what the judgment said, “Crimes against international law are committed by men, not by abstract entities like the State. And only by punishing individuals who commit such crimes can the provisions of international law be enforced”. It was submitted by the Counsel for the defence, by the, for the Nazis, this was what they said, it was submitted that, “When the act in question is an act of State, those who carry it out are not personally responsible but are protected by the doctrine of the sovereignty of the State”. Answer? “In the opinion of this Tribunal, this submission must be rejected. The principle of


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international law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The author of these acts cannot shelter themselves behind their official position in order to be free from punishment in appropriate proceedings”. Now the Nuremberg Charter of 1945 was the victor’s charter because the winners had put forward this prosecution, and that is not an exceptional jurisdiction because to try capture enemies, because these people had been captured, you can try them, because they have infringed the laws of war as defined by the 8th Convention. But what is exceptional, in 2 respects, the Charter departed from this. First is that they, first is the definition of crimes against humanity not found in these conventions was applicable to terrible behaviour within a State as much as to war-time conflict between States. So, any, what, it extended these to say that applies also to behaviour within a State. And then secondly, the sovereign immunity principle was rejected and individuals committing criminals could no longer argue that they were acting on superior orders or that the crimes were acts of State. Now this is a major improvement because, we must not forget, at that time, this was not the law. So, in fact, the criminals were charged, the accused were charged, said, “Look, you’re being unfair to us because this has never been the law and now you’re imposing this as a law”. But then this was the development of the law and it was necessitated by a fundamental understanding of civilised communities on what they should do.

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So, the essence of the Charter was that there are duties you have which transcend the national obligations and that the State cannot authorize actions outside its competency in international law. So a State, the United States of America itself, even by Congress, cannot authorize anything that is within the competence of international law which is to charge you for the crimes. All over …. will be liable for crimes against humanity. That is made very clear by Europe. So, the President, the Commander-in-Chief, clearly violates this very elementary principle that has been set by Nuremberg, and one must not forget that United States was involved in the Charter, the person who argued the case was Jackson, very well known, who he drafted the Charter itself and then he was the one who argued the case, very forcefully makes for incredible, edifying reading, very inspirational reading, and many years fast forward to this time, and you have a Commander-in-Chief who undermines the very basic ethos upon which this was built, this whole thing was built. Criminal.

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Now, that was the Nuremberg principle and people say, “Oh, this was because the winners put forward, Germany was defeated, and so, of course, what do you expect”.

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But, the Nuremberg judgment was unanimously approved as a statement of international law principles in 1946 by the General Assembly and I have set ou the resolution which is Resolution 95(1) of 11th of December.

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So the judgment at Nuremberg established liability for war crime during hostilities or war, and later developments removed that requirement for any connection with such hostilities and I’ve set out the developments include the Treaty such as the Genocide Convention, the draft Criminal Codes


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promulgated by the International Law Commission, the Statutes of International Tribunals for Rwanda and the International Criminal Court.

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So after the T-… decision, this was, T-… was a thug and he was allowed to enter the concentration camps to torture prisoners and was implicated in the first ethnic cleansing of Muslim civilians, the Hague Tribunal, the first ever sort of criminal court. After that, I have noted here, an author who states it can be stated confidently that it no longer constitutes an element of the offence. And what does constitute an element I’ve set out there, I will not go into that.

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So, in the case of torture or genocide, judicial precedent has elevated this prohibition as a violation against principle of law recognized by civilised nations jus cogens. You see jus cogens, as I’ve said are those international rules that are accepted by every civilised community as a whole, there is a universal, you do not require agreeement, in other, you do not have to be a party, you don’t definitely talk about exempting yourself from the party. It’s the agreement of a sufficiently preponderant and large number of representative of States then it constitutes a law in international customary law because this is how civilised communities as a whole see it eventhough there might be some people who object to it and so on. So it becomes what they call jus cogens it’s a Latin phrase. And it’s been defined by the Vienna Convention on Treaties and has become, and it gives, the important thing is, once this jus cogens is established, it give rise to obligation as I’ve said earlier on, and in this obligation is owed to the whole international community. This is an obligation that has been set out in international customary law owed to the whole international community that you must act against this violation. That mean every State in the world must act against this violation.

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So, this is a signal to all members of the international community that this is an absolute prohibition from which there can be no deviation, exemptions, letters by, I was going Yahoo but it’s a, video. Yoo, the Attorney-General. Not Yahoo, I’m sorry. John Yoo. Ok, so we have therefore this clear obligation, and this is set out, this clear obligation is set out in the case of Prosecutor -v- For… Ceza (?), Hague Tribunal for the former Yugoslavia, I’ve mentioned the deviation. I’ve also mentioned that under the 1961 Vienna Convention for Diplomatic Relations, there again you cannot …

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Bhagwat :

Counsel, I would like to express one problem. You see, in the case of the trials relating to Yugoslavia, former Yugoslavia and Rwanda, international jurists have raised very serious objections which go to the root of the constitution of those tribunals. And therefore it would be very difficult for us. Nuremberg is a different case because Nuremberg Charter was, as you said, adopted. (Nijar: Thank you very much) Yes, by the judges and here and thereafter it has been accepted by all the States but as far as Rwanda and Yugoslavia is concerned, very serious objections have been raised, very serious juridical objections have been raised to those constitution of those special tribunals; when on the one hand you have a situation where millions have died at the hands of the US … and Naval forces, and on the other hand you have had this very subjective tribunals, because even in the former Yugoslavia, there are enough facts on record to show that every single ethnic group was encouraged to commit crimes against the other because the objective was the vivasection of the State to restructure, restructure. And Rwanda, we have eminent Counsel who would be … defence counsel in Rwanda who have once again make detailed reports including to the United Nations about the manner in which those trials are being conducted … . So I advise … do refer … accept those decision


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of Yugoslavia and Rwanda because they were, this was a Security Council, it is the major powers who have arbitrarily set up this, excluding themselves from International Criminal Court … because many States have to … so there is no problem, but as far as Rwanda, as far as Yugoslavia is concerned, it’s tainted. Nijar :

Boyle :

I respect your Honour’s views, and in fact, indeed, I share to a large extent that view that it was a question of selective, selective justice, selective prosecution. The only reason why I relied on this is to, just for this pronouncement that, there is an absolute prohibition from which there can be no deviation, indeed I do not have to rely on this case for this particular provision, for this particular statement, axiomatic, yes, thank you very much. The point that I’m making is that these principles in international customary law … they have ripen, they have ripen into international law. They have integral component of international law. And so they have become international crimes. So no State can give a licence for it, either officially, or acting through the Executive. They have acquired the status of jus cogens. States must not only refrain from such acts, but they must cooperate to investigate and punish these acts. A Head of State pleads ignorance, if a Head of State pleads ignorance of such law, he does it at his own peril. And I want to quote a statement which shows this. When President Bush was asked about international law, this is his answer, December 11, 2003. This was what he said, I quote, “International law? I better call my lawyer. I don’t know what you’re talking about by international law”. Counsel, I do agree with my colleague there are jurisdictional problems with the ICTY and ICTR, however, the International Court of Justice did rule in its advisory opinion on the legality of the

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threatened use of nuclear weapons, that the 4 Geneva Conventions of 1949 constituted customary international law, and that was as of 1996. So, I think that opinion would be conclusive of your argument (Nijar: Yes)

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In addition, the Nuremberg Tribunal ruled that as of 1939, the Hague Regulations of 1907 were customary international law. And I believe it was Chief Judge Pe … in the legality of nuclear weapons who found that the Geneva Conventions and the Hague Regulation constituted, “intrangressible principles of customary international law”.

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Nijar :

Yes, I’m thankful and in fact I will therefore not labour this point too much because that very clearly, makes it very clear this is international customary law, there can be no deviation from this. And this is accepted as law … the year Your Honour has mentioned. So I will now want to just conclude with one two other points, the first if, of course, the most recent one I’m obliged to raise is: Pinochet No. 1 - it was based on customary international law which is at one of my concluding pages at page 15, that the most important, this has been described by some as the most important test for international law since Nuremberg, the Pinochet case, especially as regards the claim of immunity for the crimes against humanity, in this case it was torture. Pinochet No. 1 decided under customary international law. This Pinochet who was the exhead of the Chilean government when he came to Britain in 1998. There was an attempt by a Spanish prosecutor to extradite him to Spain for acts done while he was very cruel, acts done while he was Head of State some several years past - he had in fact boasted about the fact that he had killed people and so on. There was a report that was in Chile itself that


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did not name names but which made it very clear that these crimes were committed and that while he was the Head of the State.

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So the question that arose before the English Court, which is a different court from … in Chile, and he came to rest or seek medical treatment and visit his sole friend Margeret Thatcher who was a very good friend of his, but who was no longer the Head of State at that time, and he was then served with a warrant of arrest for crimes that he had, crimes against, torture, that he had committed in Chile itself. The House of Lords ruled that he sought immunity, he said, “You know, I committed as Head of State, and there is sovereign immunity”. The Court said, “No such thing. You have no immunity. That is not an act of State. Torturing people is not an Act of State. Torturing people is not an Act of State”.

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And yet they did nothing. The House of Lords did nothing

Nijar :

Well, the House of Lords ruled that he can be extradited. So that was the ruling He can be extradited. But what happened then is that one of the heads, one of the judges who had a link of the parties to them, who was appearing before them, and so there was a challenge to the bias of the judicial panel. So then, Pinochet No. 2, the case No. 2 was convened to set aside that judgment because it’s very important that justice must not only be done, but be seen to be done, so they set it aside. And then they heard the case, they re-heard the case, Pinochet No. 3. Pinochet No. 3 asserted the same things again, and I’ve summarised in 5 paragraphs, 5 sub-paragraphs at page 16 that this principle was maintained by Lord Hutton, Lord Phillips, Lord Miller, Lord Hope,

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and Saville and Lord Browne-Wilkinson, seven, seven judges. One judge dissented. The rest made it clear that it is not the function of a Head of State to commit serious international crimes, especially in the case of torture - no immunity could attach when you act as a Head of State, or a Commanderin-Chief, or Head of Government. Torture, in fact, they said, torture can only be an official act because when you do torture, as defined by the Torture Convention, it is an official act.

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So if you claim that, “I’m acting officially,” and the Torture Convention say that it applies to, this is an Act that prohibits official acts of torture, that mean, effectively, the Torture Convention has abolished any kind of immunity, because otherwise, the Torture Convention doesn’t make sense. And that was made very clear by Lords Hope and Saville and Lord Browne-Wilkinson then said that this commission of torture is, got a jus cogens quality and it has a universal jurisdiction.

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Bhagwat :

You see you got us fine, by delibrating … You have the judgment of the International Court of Justice, actually, it’s an advisory opinion (Nijar: Yes) and it’s straight to the point (Nijar: Yes), it is directly to the point in issue and it is a unanimous, it was a unanimous decision of 14 judges that international humanitarian law and jus cogens and customary principles of international humanitarian law will always prevail (Nijar: Yes) and neither the defence of national legislation or Executive order can overrule it. So when we have got 14 eminent judges of the International Court of Justice, we don’t really have to … about it.

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Yes, entirely. I’m in your hands. So I will not labour that point nor refer to those judgments itself because Your Honours have made it very clear

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Bhagwat :

On this issue they were unanimous. There were differences on other issues, but on this issue

Nijar :

That’s right, yes, entirely correct. And so I want to end by saying very clearly that, just want to say that, you know there was a letter written to the New York Times - I want to end on 2 quotes. The first is at page 7. You know the Dean of the Yale Law School really talked about all these memos, and so on, and he is an expert on Constitutional Law and International Law. He said of these memos, “They are blatantly wrong. It’s just erroneous legal analysis. The notion that the President has the constitutional power to commit torture is like saying that he has the constitutional power to commit genocide”.

And I conclude by also quoting a rather large number of American law academics stated in a letter to the New York Times, when US action against the detainees was a major issue, this is what it said, “As professors of contitutional and international law we are concerned that if the US rides rough-shod over international law today, we will create a precedent that will surely come back to haunt us in the years ahead”. The letter was never published by the New York Times. And so, distinguished Members of the Tribunal, riding rough-shod over international law, that is the question. To cover the commission of heinous, dastardly crimes. Indeed, crimes against all humanity itself. It can never, it must never be countenanced by the civilized world. And so I ask for your advisory opinion on that. I thank you very much for

Dr Shad :

The other side is not represented here today, and I think for this reason, Members of the Tribunal may have to be inquisitorial and not just adversarial. I wish to seek your response to this persistent argument made by international scholars here that

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the Geneva Conventions have some flaws, some loop-holes - the Conventions are quite suitable to deal with wars, organized violence with armed groups who are uniformed, who belong to a formal outfit, but that these conventions are inadequate to deal with individual terrrorist who behave like civilians, who do not belong to any particular group and many commentators say that the Geneva Conventions may be exploited by those who torture suspected terrorists in the USA and other said countries. So that’s one issue.

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Secondly, I’m, for philosophical reasons, troubled at the absolutiveness with which you said there are no exceptions to torture. Morally I am agreeable with that but nevertheless many people say there are no absolutes. Example often given is this: Supposing an aeroplane in an attempted hijacking. But the hijacker is overpowered and he says, “I’ve got a bomb hidden somewhere”. Aeroplane is in mid-flight. How do you deal with it? Is torture allowed?

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This is the imminent, this is the defence, necessity and the self-defence that is allowed. Imminent necessity defence that is allowed. Sometimes referred as the “Ticking Time Bomb” defence. So you have a time bomb that is ticking - can you not have some lee-way on that?

Dr Shad :

That was what President Bush was arguing.

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Now, first is, as I’ve said, that there is a definition of what is imminent, when it is allowed. So, in my submission, I had also suggested that there are situations, perhaps, that will arise when there is bomb that is ticking, and perhaps you can then have recourse to that. My first submission on that point is that this situation does not arise to the factual context of this case. That’s my first point.

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My second point is, in fact this defence is encapsuled in Article 51 of the UN Charter. And you have Article 51 which allows self-defence, with what could be contrued as pre-emptive action. But even that is subject to a lot of criteria. So the first point is case by case basis, maybe you can justify it. Does not apply in this case. Very very clearly. The second point is, even when you look at this defence, at all the case law on the subject matter, the circumstances are very clearly prescribed. And thirdly, if you look for inspiration in the UN Charter itself, you have Article 51 which allows the self-defence. Here it talks of collective self-defence or individual self-defence even armed attack occurs against a member of the United Nations, shall not impair the inherent right of the individual member. So maybe it contains this. But even here there’s a protection. Until the Security Council have taken measures necessary to make it international … . So, even here when we look at it philosophically from this basis that some inspiration from Article 51, there are caveats, there are protection, there are position, there are legal constrains to the unlimited exercise of this power.

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How about the second issue that the Geneva Conventions may not be so adequate to deal with individual wrong-doers, rather than armed groups?

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Well, in fact that is one of the elements that I’ve referred to which maybe still, which may have survived, that element that remains as far as Nuremberg is concerned, is the linkage of the conduct, my paragraph 74, with an exercise of the power of the State or State-like power asserted by political organization. So, there although there is a

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dealing with the hostilities of war, there is still this point that it’s made that it must be somehow some element of this, sorry

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Boyle :

I was just going to say on the first point on necessity, clearly the Geneva Conventions on Torture Conventions require …

…necessity is only a domestic law defence recognized by some jurisdictions and certainly in the United States, this is for the Defendant to raise, and by a fair preponderance of the evidence before it is permitted to even have that matter submitted to the jury. And then the jury must decide by a fair preponderance of the evidence that he is ... to that defence. So one cannot use a domestic defence of necessity to defeat the State’s obligation to prosecute for torture under the Geneva Conventions and the Convention Against Torture. As for this argument that there are loop-holes in the Geneva Conventions - there might have been for alleged terrorists in the 4 Geneve Conventions. But this was taken care of in Additional Protocol 1 and Additional Protocol 2 of 1977. Indeed, the International Committee of the Red Cross convened the International Humanitarian Law Conference of 1947 to 1977 to deal with the lacunae in the Geneva Conventions with respect to international terrorism. And it was all taken care of for most of the world, except the United States that refused, and and still refuses today to become a party to Additional Protocol and that is because of the power of the Israel lobby in the United States that does not want the PLO and the Palestinians to be able to claim that they are a national liberation fight. So there are no loop-holes out there. Everything has been covered. And those who make … certainly as Professor Faruqi pointed out, some of these


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American law professors, I believe don’t know what they’re talking about. Bhagwat :

Nijar :

One aspect of these torture memorandums, as they have been loosely-termed, is that if you carefully go through the torture memorandums, they single out the people of the occupied countries, or the area in which the armed conflict is taking place. These people are singled out for torture. And they are applying in prisons like Abu Gharib, Bhagram and not only in Abu Gharib and Bhagram but in both regions, they are singled-out, the people of the occupied countries who are already the … of oppression. So it is not a place of an individual terrorist to hold the torture memorandum … supposed to be applicable. It is a case of a connective group of people. Could you, could you make me understand was it an individual citizen who was to be tortured, or did this applies a policy? First is, it applied as a policy because even if you look at the memorandum of the order of Febuary 7, 2002, it does not talk about individuals. It talks about groups of people. It talks about political organization. It talks about Al-Queda. It talks about Taliban. So, there also then, if you are going to say that it applies to people who are organized after the Nuremberg judgment in this fashion, then if you look at their, they are talking about conflict with Al-Queda and and the Taliban. These are groups of people, political organization. Taliban was the government of Afghanistan at that time. So hence, it is not a case of singling out an justifying action against Moazzam Begg, as an individual, yes, he’s a terrorist, he has done this, but he is part, in fact the case, we had a case of someone who went on a frolic of his own to do things that sometimes you can do with impunity in Afghanistan in terms of some personal involvement and they were then categorized as Taliban - so that, this is a group

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policy against these people as a whole. That’s my first observation. As regards that the comment that was made

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Boyle :

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Well before we get to my, I know did want to go back to the point made by my colleague Judge Bhagwant. If you look at what’s going on here, basically you have white Judeo-Christian males torturing Muslim men of colour. I submit there is no way they would do this to white Jews, or white Christians. Indeed, after the bombing attack at the Murrah Federal Building in the United States by white Judeo-Christian males, there was no call for torture in the United States, and no tolerance of it. The laws did not change. And yet, now after September 11, we see white Jewish or Christian males and 1 African-American female, fortunately only one, Condalezza Rice, torturing Muslim men who have colour in their skin. And that’s uniform, it’s across the board. So I would agree with Professor Bhagwant that maybe that is not, maybe politically they come up with say, well they are Al-Queda and they’re Taliban, but the fact is they are Muslim men of colour being tortured by white Jewish or Christian men and one AfricanAmerican woman.

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Nijar :

I am obliged for that. In fact I did not want, in fact, testimony of the witnesses points to a sustained practice of the torturers to refer to this, for example, to carry out acts that reflect this, for example, carrying the whole of the Quran and putting on the Quran Twin Tower action or something as though the Quran is a code for carrying out bombing activities, in other words implying very clearly the link between Islamic, that this is entirely Islamic. And then we have also the incredible acts of how the Quran was stepped on and people were told that you confess before you can be able to step off the Quran and even if you move your lips a little


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bit, like in prayer, this was contrued as, you know, a violation of the instructions given by the torturers, and then, of course, you have the Quran which was torn, flushed down the toilets, things like that. So there is this sustained kind of activity that we can see very clearly based on this categorization that, you know, both of you so elegantly put, so, but there are also; there are other point that I want to make in relation to that, also is the fact that, there were, of course, some white detainees in Guantanamo. We have a book written called “Detainee 002” by Slayer who was a detainee in Guantanamo. Also there were some torturers who were not entirely white but, you know, Franz F …. has written about this, where you have colour, when you have the ethos, you adopt the whole practice of the reigning white Judaic kind of principles itself. I did not want to allude to this, but I’m grateful that you have raised it so that I can voice it as well. Now on the second question, on the question of the defence, in fact, I wanted to say that this is indeed a defence. The question of necessity and self-defence and so on, and this is in fact made very clear in the Working Group report that Rumsfeld put forward because they said that it will not give rise to criminal liability at the end of the day if they are prosecuted because we can raise, and this are the quote, “Because of the necessity and self-defence argument”. So these are defence that they’re making. This does no prevent a prosecution. And then it is for them then to raise on the grounds that I have set out whether it is imminent, whether it is so on so forth. So it is, does not prevent you from being prosecuted, so President Bush, with due respect, is entirely wrong in saying that, taking this proactive attitude saying that the defence allows exemption when it’s in fact, the defence to be adjudicated upon, on the merits of the case itself.

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Dato’ Kadir : Thank you. Mr. Nijar, have you finished? Nijar :

Yes, I have. I thank the Tribunal very much, and also for the edifying experience from the various comments and queries that have been raised. Thank you very much.

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ZZ:

Honourable President, we have 2 other members of the Commission who wish to address the Tribunal. Shall we take them in the afternoon?

Dato’ Kadir : How much time do you need? Roughly ZZ :

The 2 members who are going to address, Professor Mi

Dato’ Kadir : Just roughly ZZ :

About 20 minutes. So maybe we have about 1 hour for both of them.

Dato’ Kadir :

Well, in that case we continue the proceeding in the afternoon. For now we adjourn until 2pm today. The Court will resume at 2pm. Thank you.

ZZ :

Much obliged.

Nizam Bashir : Please be upstanding.

***** END OF MORNING SESSION *****


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DAY 2 – AFTERNOON SESSION ZZ :

Honourable President and members of the War Crime Tribunal. If the Tribunal is ready, we can proceed with the address by our next speaker, and I shall invite Prof Michel Chossudovsky to the rostrum

Dato’ Kadir : Yes, so as indicated before the break, you need about ½ hour or so. Alright, … we go on. We listen to you … Proceed Chossudovsky: Thank you. Distinguished Members of the Tribunal, further to our discussions the War Crimes Commission has requested me to provide the backdrop of the broader context in which these crimes and atrocities are being committed. This is not, as far as my presentation is concerned, a legal argument. I am not a lawyer. But we believe from the outset, deriving from the Kuala Lumpur Initiative to Criminalise War that this broader framework is required both for an understanding of the process, of the overwhelming process of criminalisation which is occuring. The military agenda which is a war without borders, a long war that this framework is required. We are not strictly dealing with issues of torture. We are dealing with military agenda which threatens the future of humanity. And while we understand that it is necessary to proceed with accusations against the alleged war criminals, Heads of State, Heads of Government, we are dealing with something far more momentus, in terms of the structure of US foreign policy, its military agenda, its military doctrine, the various Senate decisions, just to give you an example, the Pentagon going back to 2002 presented its Nuclear … Review which redefines entirely the deployment and use of nuclear weapons, and this was subsequently approved by

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the US Senate regarding the so-called pre-emptive use of nuclear weapons in the conventional war theatre on the grounds, and I quote from the Pentagon document, that, “tactical nuclear weapons are harmless to the surrounding civilian population because the explosion is underground”. That statement was based on fabrication, scientists and analysts who put their name and said, “Yes, the nuclear bomb is now a humanitatian bomb, it’s not an instrument, conquest”… Dato’ Kadir : Excuse me … I think what we are more concerned now, that the jurisdiction given to us, whether or not to pronounce an advisory opinion. So we would like, centre on that, because you start going on in this form we do not know how long it will take us and we’ll be stranded or carried away by something else, because we are concerned here is: Whether an advisory opinion as sought, ought to be granted, in the terms that was prayed. So, not that, I think we’ll go on that, more on arguments. Chossudovsky: Mr. Chairman, I think Professor Nijar has provided many of the answers with regard to humanitarian law. If you want my opinion, the socalled international community, the composite of Heads of State, and the Heads of Government, the European Union, the United States, the NATO States Heads of Government, Heads of States have in fact opted out from the composite of humanitarian law in international law and this didn’t happen yesterday. In fact you can go back to the Truman Doctrine of the late 40s and to the war crimes committed in North Korea where according to General LeMay some 20%, as a US General he said, “We must have killed at least 20% of the population of North Korea in carpet bombing”. I think that it’s important that this issue of opting out from the composite of international law, we put


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in a perspective, a US foreign policy perspective, otherwise we won’t know what we’re talking about, ok. The issue of torture, which I understand is the basis, the testimonies have to be understood in that broader context. We have tonnes of military documents of US foreign policy statements, Senate decisions which define a broader context and define a broader area of criminality, much broader of criminality which involves the killing of millions of people. Bhagwat :

Professor Chossudovsky, what you’re trying to tell this Tribunal is that they have opted for military doctrines which completely flouted … international humanitarian law. So it is not the case, it’s not an issue of one or two tortures or some torture memorandums, the seriousness of the situation is, goes much beyond that, because the world is plunging towards a war which has violates every rule, every single rule or convention and treaty of international law. It matters where you wish to place it at a much higher level.

Chossudovsky: Well, I think yes, I think that the Tribunal has opted for the testimonies, and this has been the dynamics, the testimonies of the victims of torture, which I think is the avenue to provide the evidence, the supporting evidence that I believe, and I think it’s the viewpoint of the Commission, that we should not present that type of evidence in a vacuum, ok. It is part of a machinery, it is part of a political process and, bear in mind, it is part of a consensus which is shared by Heads of State and Government around the world, and it’s shared by our media. So we’re not dealing with something which is micro, it is a global process, the fact that the media doesn’t cover these issues, that they don’t report extensively on the war crimes which are being committed, that they don’t report on the humanitarian bombs which are being thrown on people around the world

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Dato’ Kadir : My point is this, will that lead us to something at the end of your submission, so to speak? Might enable us to make a decision whether an advisory opinion ought to be given or not? That’s the issue. … close the door … It may come at the appropriate time of the way you submit, but what we’re concerned now, is seeking, we convene now, is on account of an application made by the Commission seeking an advisory opinion from us over a specific matter. The issue is: Whether or not we could grant the advisory opinion sought. So get to the issue. Chossudovsky: Well, Mr. Chairman, that is for you to decide

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Prof Chossudovsky, we hear you because under Article 7 the Commission and Tribunal have jurisdiction and I agree with you that what at issue is far more fundamental and is a much more wider issue and we would like to hear you on the backdrop.

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Chossudovsky: Thank you. Yes, I believe that in the work of Tribunal this broader perspective is required irrespective of, because it can be better argued without strictly dealing with isolated cases of torture

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Bhagwat :

Dato’ Kadir : Well Mr Chairman, did you get our point or not? You come to us seeking for certain thing which ought to be in the way you requested so what the issue here is: Can you convince us that we are obliged to issue with an advisory in the manner you sought? ZZ :

Honourable President, I think the question posed to the Tribunal for the Advisory Opinion has been made specific. If I may read it again, it says: Whether a Head of State or Government can unilaterally exempt itself from complying with any provisions of any international treaties or conventions, such as the Geneva Convention dealing with international humanitarian law as set out in Article7(1)(a) to (g) of the Charter of the KL War Crimes Commission


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Dato’ Kadir : Agreed, agreed. So you expect us to give a negative answer? ZZ :

No. The answer is left to the Tribunal.

Dato’ Kadir : Right ZZ :

But the right to seek the advisory opinion is under the Charter. Whatever opinion given by the Tribunal in its wisdom will be accepted by us.

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Dato’ Kadir : I know. What I mean is this. Tell us, in what manner that we ought to grant the ZZ :

Honourable President, from the submissi

Dato’ Kadir : You see this morning we heard Mr. Nijar put a case for us, on behalf of the Commission. We listened. We followed. So we want to go on, but for the adjournment this afternoon, we would have gone on so that at the end of the day we are able to make a decision one way or the other. So, with whatever time that we have, are we going to be able at the end of the day then, to come up with an answer whether or not the advisory opinion sought in the term sought ought to be granted or not. So that’s why this morning we were talking about jurisdictional issue, and then go to the issue at hand. We want that. Satisfy us. If we are convinced, you have it. So that’s what we mean. Webre :

Judge, if I may, I think in the context of Article 7 section 2 what Professor Chossudovsky may be doing in his presentation to the Tribunal is laying the evidentiary context for the nexus of causality between the Head of State, George W. Bush, and the individual acts of torture, and that relates directly to the question of whether a Head of State can unilaterally exempt itself from complying with the provision of any international treaty. So I wouldn’t say that the facts and perspective that

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Professor Chossudovsky is presenting here in the way of an evidentiary chain is relevant to the question at hand. Thank you.

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Dato’ Kadir : First I must apologise. I mistook you for Sponeck, sorry about it. So, whatever it is, do you get the message that I’m trying to convey? But if he’s going to lead to that, by all means, go ahead. ZZ :

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Well, Honourable President, we have not yet heard whatever, most of what Professor Chossudovsky’s going to say. At the end of his submission, I leave it to the Tribunal to decide whether they are relevant or not.

Dato’ Kadir : Because in the first place Professor Chossudovsky started off “I’m not giving any legal argument or anything like that” it takes us to a different Dr Shad :

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It is for the Tribunal at the end of Professor Chossudovsky’s submission to evaluate whether it supports our submission or otherwise. Similarly, when Professor Hans von Sponeck addreses the Tribunal, it is up to the Tribunal, if they feel that the submissions are not relevant, do point out to these speakers.

Dato’ Kadir : All that I can say is that we are not able to say just as now whether relevant or not relevant but the way that I’ve been following, I seem that we, we are, sort of going to gather something. But whether at the end of the day … to answer your question if we are asked to answer. ZZ :

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Much obliged. Anyway

I think so Mr. President, I think legal issues are never entirely legal. They have a social political strategic context. And perhaps we should give the learned Professor a chance to convince us as to why that’s relevant.


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Yes I believe the majority view of the Tribunal is that he should be heard, and I would be much obliged if he’s allowed to continue with his submissions. Thank you.

Dato’ Kadir : Go ahead then. Chossudovsky: Ok, well I will not dwell on legal arguments since that is not my mandate but I would re-emphasise pursuant to Professor Nijar ’s presentation this morning that the state in which we are today is a collective opting-out from any responsibility of the international law by NATO heads of State, heads of government and many other countries, incidentally, which is complicit with this military agenda. Let me start by stating the following.

In the year 2000, in a document of the project of the New American Century, which provides, in fact, the contours of what was subsequently embodied in many other documents of the Bush adminstration, it was stated that the United States, and this was before the official launching of the War on Terrorism, so it’s important to emphasise it, that the United States would wage major theatre wars simultaneously in different parts of the world in substance, and that they would also implement the many other elements in this document, that they would also implement what is called ‘the revolution in military affairs’. It’s the development of the most deadly new weapon systems, the development of a new generation of nuclear weapons and so on so forth. But there are … of this project which the Pentagon calls ‘The Long War’, is a war of economic and political conquest world-wide, it’s a war without borders. And it is what we are now experiencing and it’s confirmed by analysts we are experiencing a situation where the war has escalated dramatically, US military presence is to be found in virtually all

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regions of the world and a massive deployment and escalation has occurred, in fact, under the Obama administration.

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Now, if we want to put this in some historical perspective, and I think we should, I’d like to start, although this is not necessarily the starting point of this military agenda, I’d like to start in 2001 because the tragic events of 9/11, whatever one’s interpretation or understanding of these events provided not only a pretext but a justification for the first full invasion of Afghanistan but also for providing a legitimacy, using the so-called “War on Terrorism” as an umbrella, and incidentally also justification for torturing people.

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And that I think is very important that we understand first of all, that in the wake of 9/11, in fact on the first day, a war cabinet was formed in the afternoon of September 11, 2001, and in the evening the United States of America had already de facto declared war on Afghanistan claiming, without any evidence, that Afghanistan, and the government of Afghanistan had launced a war on the United States. And this was then confirmed the following morning on the 12th of September by the North Atlantic Treaty Organization invoking Article 5 of the Washington Treaty and saying that the United States had been attacked and consequently all NATO nations would stand with the United States an attack against one is attack against all, and that in an act of self-defence they would then invade Afghanistan. I’m simplifying, but that in substance is the justification as well as the pretext which defies any, I mean, it’s a diabolical view-point. It’s predicated on the fact that Muslims and Arabs attacked the United States and a foreign government ordered, and there is no evidence to that effect, ordered these attacks, namely the government of Afghanistan.


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There was in the course of September 2001 several diplomatic initiatives particularly by the government of Afghanistan, I say government of Afghanistan because we normally refer to them as the Taliban but they were the government of Afghanistan, whatever their designation, they, through diplomatic channels they contacted the United States and they said, “If you have any evidence that bin Laden is responsible for the 9/11 attacks, we will be happy to deliver him to US justice”. This was in fact made on 2 repeated occasions and George W. Bush said, “We don’t negotiate with terrorists”. That was his response. Ok. And then, bear in mind that, I believe, the 7th of October, the war commenced and anybody who is, minimal understanding of military planning knows that you don’t plan a large-scale theatre war thousands of miles away in a matter of 4 weeks. So that war, Members of the Tribunal, was planned well ahead, well ahead of the tragic events of 9/11, and the tragic events of 9/11 gave the justification and the pretext for waging that war. A large-scale theatre war takes at least 1 year to prepare. This conference has taken almost a year to prepare. I think this is very important because the entire rationale for that war is also the launching of a new concept which is the “War on Terrorism”, so-called War on Terrorism on assumption that the United States is being attacked, and the United States is defending itself, and so that this is not really a war of aggression, it’s a war of self-defence. It’s an absolutely absurd concept. And it certainly pertains as a very direct way to the tenets of international law, so that there is a collective decision on the part of NATO heads of state, heads of government and many other countries which are present in that war theatre to support a criminal war, a war which is illegal and which constitutes an exemption as we were discussing earlier, an exemption from the

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composite body of international law. So that I think is very clear that we should understand that. But we should also understand we’re not dealing with one or three or four consecutive war theatres. We’re dealing with a global military agenda and that is important because some people say Afghanistan, Iraq, Yugoslavia, Palestine, now it’s Pakistan. We are dealing with a single military agenda which is now being waged by the United States, NATO, Israel and which is supported, and that’s very important, by a number of front-line Arab states which are part of the Mediterranean dialogue which is under NATO sponsorship, so that, in effect, this is also a consensus of a large number of countries to wage war in the Middle East and Central Asia. It is not a war on terrorism. It is a war, it is a profitdriven agenda. It is based on acquiring control and ownership of vast oil and gas reserves in that region which constitutes something of the order of 60% of global oil and gas reserves. Iraq alone has 5 times more oil than the United States of America. Consequently this is the nature of this war. It’s a war of conquest. It’s profit-driven. It has corporate interests behind it. It’s not simply the heads of state, the heads of government. It is the military industrial complex, the large defence contractors, the oil companies, the bio-tech conglomerates. Of course, the financial conglomerates, Wall Street, which are the creditors of the state, and which are also funding this military adventure so that ultimately we are starting to deal with who are behind this wall, who are the criminals. We are dealing with an entire apparatus. We’re dealing with the structure of the State, the criminalization of the State, the criminalization of the financial apparatus, the complicity of major corporations which we are also dealing with issues pertaining to the privatization


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of war with extensive mercenaries armies going into the war theatre. It is a profit-driven agenda and consequently when we seek to accuse and or indict alleged war criminals, we must bear in mind the broader picture which was said very precisely in the Kuala Lumpur Initiative to Criminalise War, but again, I understand that the Tribunal has to act in a very targetted way, precisely, to use the evidence which is the evidence of torture and interrogation and detention but which as I’ve argued here is part of a much broader framework. Now, I want to say, as I had already mentioned, the post-9/11 era is absolutely, there’s a crucial change and also an attempt on the part of the United States and its allies to redefine that tenets of both national and international law, and you can see it with the Patriot legislation, the National Security agenda, the repeal of civil liberties, the police apparatus all of this is part of the same package of measures. But I want to address the issue, I’ve already addressed it briefly, but the issue of nuclear war is absolutely, is very important because in the post9/11 period, the US Senate has redefined nuclear war and has presented, it’s also through the reclassification of these weapon systems so that the nuclear weapon is no longer strictly a strategic weapon, it becomes a conventional weapon, it has a conventional, at least the tactical nuclear weapon as it’s described which, in effect, is similar to a normal nuclear bomb, it’s has been reclassified. It has between 1/3 and 6 times the explosive capacity of a Hiroshima bomb. So in effect it is of the same nature, it is a criminal bomb, so to speak, but it is been redefined as a humanitarian bomb, and, as I’ve mention, it is also in the context of this war on terrorism, it’s absolutely diabolical, that a nuclear bomb could be used against a Head of State or used against Al-Queda, k.

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I can refer you to military documents where they say, military analysts would say, they should, there could be a good case to taking out Saddam Hussein with a tactical nuclear weapon. That statement was made prior to 2003. And the statement of using nuclear weapons for self-defence is there and it is particularly important to analyze this I the context of the current confrontation with Iran. From the outset, 2001 Afghanistan; 2003, Iraq. Then we also have the invasion of Lebenon. We have the invasion and atrocities committed in Gaza. And now we have, in the last year or so, an extension of, an escalation of US military operations inside Pakistan. Officially, the United States is not at war with Pakistan, but de facto it is at war because US bombings with drone aircrafts with, un-manned aeriel vehicles are targetting civilian populations in north-western Pakistan and in the tribal areas and, consequently this is a prelude to an escalation. The Obama administration is now allocating, but there’s some discussion on the numbers, something like 85,000 new troops which will be allocated to the war theatre; they could be allocated to Afghanistan initially but, again, we are not dealing with separate war theatres at this stage because the process of escalation is likely to lead to an enlargement where you’ll have an extended war theatre from the eastern Mediterranean right through to the Chinese border, and that raises also a recent development pertaining to the encirclement of China, the encirclement of China and threats against Chinese sovereignty; these are veiled threats, but I can assure that if you look at military documents that they are, what is contemplated is first-strike nuclear attacks against China, Russia, North Korea and Iran. These countries are those which are being targetted and we have seen in recent developments not only this notion of encirclement of China and Russia but also what I’ve described


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as a globalization of the so-called “missile defence shield”. The United States has been planning this initiative since the Reagan administration, this is referred to as “Star Wars” it’s a so-called missile defence shield, but in effect it is an instrument, again, of aggression, of attack and it is directed against Russia, China, Iran and North Korea and if nuclear weapons are used pre-emptively against these countries, we are in a World War 3 scenario. There’s absolutely no doubt. So the question is: Are the great powers of the world, NATO, United States, European Union of course, are they opting out from international law to blow up the planet. But that’s really what I mean by, really I’m exaggerating, but that is what, that is the situation in which we are. We are in extremely dangerous cross-roads, the most dangerous crossroads in world history. McNamara made Dr Shad :

Professor, this is an age of internalization, globalization and human rights. Do you think that many of the Bush government doctrines, now I now the government is gone, but new government is not making any radical changes, do you think that American government doctrines are a radical, of an extremist form of national sovereignty as in the medieval ages?

Chossudovsky: First of all, I’m glad that you asked that question. The new Obama administration is presenting to the world a human face of a President which is a graduate of Harvard law school and who has some minimal understanding of foreign policy and can write his own speeches and so on and he looks like a nice guy. But that is not the issue. The issue is that the Obama administration has launched an escalation, has

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increased the military budgets, much more money being spent. And in fact that escalation, the decision to escalate took place on the day he received, the Norwegian Nobel Committee announced his nomination for the Peace Prize. We are, yes, these are diabolical, destructive, absolutely, they don’t serve their purpose because the blow up the world. We are at a very dangerous cross-roads. And I think that the purpose of our initiative here is also to reverse the tide, is to reverse the tide of this criminal agenda. There’s a logic in military doctrine, although I’m an economist, I’ve done a lot of reading of military doctrine. There are 2 levels of propaganda. There’s one level of propaganda which is to convince us that we are doing the right thing. And the war of terrorism is ultimately that pinnacle of where people say these are bad guys, evil is lurking, we must go after the bad guys, take ‘em out with nuclear weapons. There’s another level, Mr. Chairman. It’s one thing called the propaganda which is directed towards top officials. Towards people within the military establishment, people who have to take decisions, people who press the button, people who will say well, “Nuclear war can be initiated by a Commander in the war theatre”. K. That is a fact. Dato’ Kadir : Pause here for a moment, my sister have something to Tunku Sofiah : Excuse me Mr. Chossudovsky. The application by the Commission is an application presented in one single question, although, and you should look at the question (Chossudovsky: I have the question) on 2 different things: One, whether a head of state or head of government can escape liability from existing and binding treaty or conventional obligation without first abrogating them; and Two, whether treaties involving international


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humanitarian laws may be abrogated. I hope Mr. Chossudovsky, that you appreciate the difference between application for advisory opinion from that of a contentious suit.

The definition of an Advisory opinion is “an opinion issued by a Court of competent jurisdiction that does not have the effect of resolving a specific legal case, but merely advises on the constitutionality or the interpretation of law”. I would advise you, Members of the Commission, this is not a contentious suit, right, so you have to address the Tribunal that we have the jurisdiction and it involves a matter of international law that it is one of substantial public importance. That’s all. I say that, even this morning, the members of the Commission were just carried away, this is not a contentious, you will have your day when you institute the suit, we will hear you, we will give listening ears.

Dato’ Kadir : Bear with us for one moment. Please. Bear with us. If you care to listen. If I may add to that. Your submission, as we see, would be very very relevant for another appropriate forum. We are not saying that you are not giving anything of any use at all. It may be relevant. But the issue here is: We are asked to answer a question. Specific question. We believe the Commission may have something that is worrying them, that one day, in the course of proceeding, a Head of State, or the Government may come up and say, “Yes we admit that we then abrogate the relevant treaty or convention but we can unilaterally exempt ourself from complying with any provision whatever … the risk. Therefore they say “No”, you can’t touch us”. That’s what they fear.

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So they want an answer from us. Can such a person come up and say, “No, don’t touch me. I’m a Head of State?” or “I’m representing the government. I can unilaterally exempt myself. Don’t touch me”. That’s what they fear. The fear that this Tribunal, at that appropriate forum we say, “Yes, we are with you. You can do what you like. We can’t touch you”. That is their fear.

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So bearing that in mind, they come to us: “Can you give us an opinion, whether if that particular person, or body come, with that … what is your answer after that?” What we want is, you are going to tell us, “No, it cannot unilaterally exempt”. That is the point that we are interested. At the end of the day, we are going to provide an answer whether this particular body of men can or cannot unilaterally exempt themselves.

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You get my point? We are not saying that what you’re saying is not relevant. It may be very very relevant at the appropriate forum.

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Yes Honourable President, I think the submissions this morning from Professor Gurdial Singh Nijar addresses the question directly, and I think Professor Chossudovsky

Dato’ Kadir : So if that is, you can end your day, submission. (Zainur: Well, ah, anyway) She gave you the liberty. You asked for another hour, half an hour, proceed along that line, as if what you have stated in the morning is not enough. Not enough? You want to go on? That was my point. Please bear with me. It’s not my intention at all to interfere, to break your trend of event, or trend of thought, but it has to go to the issue. ZZ :

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Anyway, Honourable President, Professor Michel Chossudovsky’s closing. He has probably another 2-3 minutes.


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Please proceed Professor Chossudovsky

Chossudovsky: I think that many of the things I want to say are of substance, but I dare say that in many regards I consider this question “Whether a head of state can unilaterally exempt itself from complying with the provisions of any international treaty or convention duly ratified by the state, without first abrogating the relevant treaty or convention?” That exemption, that opting out, de facto, is already there, k. This is, we know that, k. They can. What we are dealing with, and I’m not giving you, because I’m not a lawyer, but ultimately we have a situation where war criminals in high office, heads of state, heads of government are deciding who are the war criminals when they themselves are the war criminals, you understand? That is a very important issue. War criminals in authority are deciding and redefining the legal framework to establish who are the war criminals when in fact they are the war criminals so that those who opposed to the war are now defined as the bad guys. And that is what is occuring in the whole legal fabric, and it’s occuring in the media, and it’s occuring in the tenets of US foreign policy and diplomacy. I think I will rest at that. Bhagwat :

I have a question. What you are telling the Tribunal is that the issue is an issue which involves political questions. And I can tell you and assure you that whenever political question is related to a legal question, we have authority to bring up the matter and to hear it. What you are trying to tell the Tribunal is that there is a conspiracy to violate international humanitarian law, and it is so serious that there are several governments headed by the United States, the NATO alliance who already de facto and de jure have placed their entire systems beyond the ambit of international humanitarian. Am I right in? (Chossudovsky: Absolutely)

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And they are assisted by, in fact, they are influenced by corporate and financial sector and the global media is playing its own role, allowing whole societies to acquiese in this serious violation of international humanitarian law, which has as its base the crime of aggression and the occupation of one society after another as a part of a common global war to seize resources.

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Chossudovsky: Yes, I think this summarizes my thoughts on this matter and I think that we must understand that the actions undertaken by the Tribunal and by the Commission ultimately also seek to criminalise war as defined in the Kuala Lumpur Declaration with a view to dismantling this agenda, this foreign policy framework, but I think in the course of formulating a legal procedure one has to know in what kind of world one is living in, and these are dangerous cross-roads and I sincerely hope that we can reverse the course of history and establish a world of peace, under the help of Dr. Mahathir. Dato’ Kadir : Thank you very much.

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(applause) Dato’ Kadir :

Do you have anymore?

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One more member. About 20 minutes. Not even 20 minutes

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Honourable President, I assure you I will not tax your patience too long.

Dato’ Kadir : No no no no, I will be very very patient. Provided you are relevant. Relevant to the issue. Hans :

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I will try. I stand before you, Honourable Judges, not as a person with a expert legal mind, but I stand before you without any complex, as a practitioner, a practitioner who in his UN life has been concerned


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everyday for the adherence to international law in the daily conduct of international affairs. And I have listened with pride this morning to our colleague Professor Gurdial Nijar who has done the job that we should all have shared with him. But I just would like, with your permission, to make briefly, 3 observations, that continue a discussion that you’ve had with him already this morning.

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My 1 st observation concerns the provision in the UN Charter which, Honourable Judges, if of great concern to any UN official in dealing, who is dealing with conflicts of State parties. And it also applies to me as an official who was in charge of the humanitarian programme in Iraq during the crucial years. I am referring to this document here, the Charter, to Article 51.

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I will expand on this Article but allow me to make my 2nd brief observation which has to do with torture of Iraqi citizens and other nationals residing in Iraq at the time when the US-led invasion of 2003 and subsequent occupation took place. It would seem to have to be considered in the wider context of international humanitarian and human rights law, especially UN Charter law Article 51. 3rd point, and I now would like to make very brief observations on the specifics of Article 51. The UN Charter confirms in this Article that all nations have the right to self-defence. However, the right of self-defence is qualified by a clause that is very important. The clause is: If an armed attack occurs while the UN Charter Article 51 recognises the right, as we have heard this morning, of self-defence, it also requires Member States, and I think that it’s crucial and it’s relevant to be concerned of the commission, and the Tribunal is to report immediately when they have exercised this right of self-defence. And it is then, in my view, for the United Nations Security Council to determine the

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right of self-defence as applied, is consistent with Article 51, or not.

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With regard to the US-led invasion into Iraq of 19th March, 2003, I would submit to you would it be for the Honourable Judges to determine whether this invasion was justified and whether there was indeed an imminent of threat from Iraq or not. And therefore, the Honourable Tribunal will confirm or not, the right of self-defence by the United States at that time was in accordance with Article 51, or not. And furthermore, confirm or not, whether the response of the United Nations Security Council not to recognise the Iraq invasion of 2003 as justified as an act of self-defence.

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To facilitate the work of the Tribunal, Article 51 and what I consider 6 additional Articles relevant to this discussion are cited in verbatim, via document, that with your kind permission, I would like to hand to the Registrar of the Tribunal.

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With your very kind patience and indulgence, I would like to add one other point, and that is a very brief summary observation that I consider important. I consider it important in the wider concern of the Kuala Lumpur Foundation To Criminalise War. I would request the Honourable Judges to consider, at an appropriate time, to include the 13 years of sanctions as practised against Iraq prior to the 2003 United States invasion as another form of warfare, in violation of Article 22 of the 1907 Hague Convention annexed, section 2 which reads:- “The rights of belligerence to adopt means of in injuring the enemy are not unlimited�. I would like to rest my case here.

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Under-Secretary, on your 2nd point, I do hope when we further proceed, we could have a submission from the prosecution on the sanctions against Iraq prior to 2003 invasion which, in my opinion,


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constitutes genocide within the meaning of the 1948 Genocide Convention. And I know that you and Under-Secretary Halliday have taken this position and resigned with the UN for that reason, I do hope you get submissions.

To answer your 1st point, I guess I see it a little differently, in the sense that if you read the National Security Strategy documents September 2002 by the United States government that they used to justify the attack on Iraq, they did not even use the doctrine of self-defence under Article 51 of the UN Charter. They used the doctrine of preventive warfare as this document put it, “The best defence is a good offence”. That language is right in there. Now, the doctrine of preventive warfare that has nothing to do with self-defence under Article 51 of the UN Charter, and they knew it, which is why, I believe they formulated this doctrine. And the doctrine of preventive warfare was rejected by the Nuremberg Tribunal when the lawyers, the Nazi defendants tried to used this doctrine to justify their aggressive invasion of Norway. So it seems to me that that is the real issue here and it gets back to Professor Chossudovsky’s point that this is a real turning point that we have the States of the 2nd World War who defeated the Nazi regime now adopting Nazi principles that were used by the lawyers trying to defend the Nazi leaders at Nuremberg. So I wonder if you could give me your comment or reaction to that point. Thank you.

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Thank you Judge Boyle. I would like to suggest that the actual, the reality was worst than I presented to you in March 2003 because the United States and the UK governments clearly had left the international alliance of nations and decided to do what Secretary of Defence Rumsfeld once said, “International law? We don’t need international law. We

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make international law”. That was the spirit of March 19th, 2003.

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I just thought that we, abiding, or trying to abide by Charter law and other international law should give value to Article 51 and argue that anyone participating in the affairs of the UN Security Council will defend its decision that that particular government acted in accordance with an imminent of threat and in the interest of self-defence of the country concerned. I think I was not quite correct here because that issue never arose as far as the 2003 invasion was concerned. The Americans simply had left the alliance of nations, as I’ve said, and acted on their own. They had used, as we have seen before, the United Nations as a tool-box you use the UN when it is suitable and you abandon the UN. So I think I could have made my case more stronger, as you have suggested.

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As far as your 1st request is concerned, at least on my own behalf as a Commissioner of the War Crimes Commission, I would be only too ready to join hands with my colleague Dennis Halliday to put before the Tribunal, if this is what you wish, a document that outlines the violations of international law, or as I would argue, very strongly argue but I have a feeling the Tribunal wasn’t ready yet to enlarge the canvass, I would argue that what happened in the years 1990 to 2003 constituted another form of warfare. And the law of war and the laws in war should apply to that period as well. Thank you.

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I have a clarification to seek. And that is, what you are saying is that as far as the impostion of sanctions on the people of Iraq which was imposed by the Security Council, no less an organ than the Security Council of the United Nations - and this constitutes both a declaration of war and consequently leading to blatant violations of international humanitarian


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law … . What I would like to clarify is; that the Security Council participated in the violation of international humanitarian law. I’d like a clear, exact and truthful statement. You are before a Tribunal. Hans:

Judge Bhagwat. You will appreciate that someone who has served 32 years for an organizations and believes in International Charter law doesn’t have an easy time to look at you and say that the organization that I’ve served has violated international law. But the fact is, that a US-UK dominated Security Council violated, you want that clarity of answer, violated Charter Law. The UN Security Council had options that were within the domain of legality and it chose to ignore these options. And therefore the UN Security Council, as a Council is liable, are perpetrators but I think you know better than I do that you cannot take the UN Security Council to court. You can only take individual members of the Security Council, ultimately, to account for policies of the kind that we are seeing.

Bhagwat :

Hans :

No, I am linking up your statement to what Professor Michel Chossudovsky was trying to tell the Tribunal, and unfortunately we interrupted him, and that is, that what he was trying to say is, that there is an extensive collaboration and many governments have put themselves wantonly outside the p… of international humanitarian law. (Hans: Am I) And what I wish to say further is that you have referred the US-UK led attacks and that all permanent Security Council members participated in the imposition of sanctions. That is correct. But if one can grade, Judge Bhagwat, and distinguish perpetrators in terms of the scope of their violation, I would submit to you that it would not be correct to name France, Russia, China and I am here in Kuala Lumpur remembering

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very well the very courageous participation of Ambassador Hasmi Adam(?). He was very courageous and helpful to us in implementing what we thought, at the civil service level as a correct humanitarian programme. So I would not lump everyone into one basket of correct accusation. I think the Security Council as a whole certainly has failed to abide by the very rules that they were supposed to defend.

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Bhagwat :

This completes Professor Chossudovsky’s pieces which he was attempting to place back.

Dato’ Kadir : Thank you very much Mr. Sponeck. Mr. Zainur, you need to wind up or sum up? ZZ :

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I have nothing else to add to the submissions addressed by my colleagues this morning and this afternoon. With that, we conclude our submission, and I would like to take this opportunity to express my thanks and gratitude for the indulgence, patience and tolerance on the part of the Tribunal. We had a long morning and this afternoon. And with that I say once again thank you very much and we look for a favourable opinion from the Tribunal. Thank you.

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Webre:

Yes, just a couple of technical details. We didn’t know if the Commission were going to submit a revised question in writing

Nizam Bashir: The amendments Nijar :

Yes, in fact we have forwarded the text with the amendments to the Registrar and I believe the Registrar will be forwarding it to you in within moments. And also for the 2 documents that we were asked to attach, one is the document of February 7 signed by President Bush. The other one


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was the cautionary note by Colin Powell in February of the same year. We have also got copies which we will give to the Registar immediately after the end of proceedings.

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DAY 2 – AFTERNOON SESSION

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Dato’ Kadir : Right, Now, on behalf of the Tribunal, and in particular my Learned Brothers, I will today deliver ex tempore decision on the application sought by an advisory opinion, and after this we will be putting up our reasoning in written form, … which will be coming in due course. As of now, to fit in with the request for the application, we’ll give the answer now.

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On the application for an advisory opinion as contained in the application No. 1 of 2009 submitted to us by Kuala Lumpur War Crimes Commission, we have heard submissions by the applicant have deliberated over the matter, and here are our views. One: On the question of threshold jurisdiction, the Tribunal is unanimous in giving the opinion that this Tribunal has jurisdiction to consider application No. 1 of 2009. Two: On the question of the substance of the opinion sought. The views of the Tribunal is again unanimous, 7-0, that a Head of State and/ or government cannot unilaterally exempt itself from complying with any provision of any interntional treaties, convention, such as the Geneva Convention, dealing with international humanitarian law and in particular as set out in Article 7(1)(a) to (d) of the Chapter of the Kuala Lumpur War Crimes Commission duly ratified by the State without first abrogating the relevant treaty or convention. Three: On the question of whether international humanitarian law can be abrogated, revoked or denounced by such Head of State or Government, our


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answer is again unanimous, 7-0, that international humanitarian law cannot be abrogated, revoked or denounced by such Head of State and/or government. Lastly, ultimately, our advisory opinion sought is by way of unanimous decision that a Head of State and/or Government cannot unilaterally exempt from complying with any provision of any interntional treaties and convention, such as the Geneva Convention dealing with international humanitarian law and in particular as set out in Article 7(1)(a) to (d) of the Chapter of the Kuala Lumpur War Crimes Commission duly ratified by the State without first abrogating the relevant duty or convention. And now, I’ll invite members of the Tribunal, my Learned Brothers and Sister to say, or elaborate, by way of oral reason as to why they come up with this decision that I’ve announced, or pronounced just now.

First I’ll invite from my left, my Learned Brother, Professor Shad, Judge Shad.

Shad :

Mr President, my Learned Brothers and Sisters, and Applicant. Before I deliver my opinion, I wish to make a few preliminary comments. I think the question posed to us by the Commission raises significant issues about the sovereignty of the national State. The question posed us asks us to rule on whether a nation may unilaterally exercise its sovereign will to abrogate the provision of a binding treaty … of international law. I wish to say that national sovereignty is not an absolute doctrine anymore as it was in the Middle Ages. The whole history of public international law is, in the field of regulation of war, is inspired by

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the belief that some rules of civilised behaviour bind all nations. Mr. Nijar, Professor Nijar very correctly pointed out to us the concept of jus cogens - or customary international law which binds all nations. I wish to add that the whole history of human rights is premised on the belief that national sovereignty is a shield against external aggression, but national sovereignty cannot be used as a sword to slaughter one’s own people or the people of other nations. Now I come to the 1st issue of jurisdiction. I believe we have jurisdiction under the Charter of the KL Commission. In addition, I am of the opinion that the KLWCC, that is the Commission, and the Court have jurisdiction to investigate and adjudicate war crimes in Iraq for the following reasons. First of all, the concept of law is not confined to inactive formal law. The majestic concept of law includes a higher supra-national universal field of natural law. Natural law is not man-made. It is derived from a superior source. This superior source is revelation, reason, or intuition. This type of thinking was and is the motivating force in all trials of crimes against humanity - whether at the Tokyo and Nuremberg trials, or the more recent trials in former Yugoslavia, Sudan and Sierra Leone. In all these trials, the guiding principle was: That above and beyond the law of the State, there is a higher law to which the victims can appeal to, and which the victims can invoke. Now even if it is alleged that the KL proceedings have no formal legality, no one can deny they have legitimacy. The legitimacy is derived from the nobleness of the cause; from the urgency of the situation, and from the tragic fact that the victim of the illegal racist war in Iraq have absolutely no remedy. We heard from some of the witnesses yesterday that they feel this is their last recourse.


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The KL proceedings are inspired by the noble principle that wherever there is a right, there must be a remedy - ubi jus, ibi remedium. The families of the hundreds of thousand of innocents slaughtered in Iraq in the last 5 years, thousands more who have been tortured and millions more who have been displaced have no remedy in national or international Courts. Their country’s still under a brutal occupation and it is inconceivable that an Iraqi court will prosecute members of the occupation force for war crimes. American courts have no jurisdiction in Iraq, and save for some American judges in recent years, in earlier years many US judges had even feigned helplessness in relation to torture and unlawful detentions in American-controlled concentration camps in Guantanamo Bay. Even more sadly, the ICC has been approached by hundreds of complainants. It’s chief prosecutor has most amazingly ruled that the complaints do not have sufficient gravity to merit prosecution. Now the Rome Statute, under International Criminal Court has a number of flaws that prevent the horrendous war crimes, genocide, the crimes against humanity and the crime of aggression from being prosecuted. Because the problems of time, I won’t detail some of these problems. They will appear in the final opinion. But on this issued I wish to say the KL proceedings are inspired by previous precedents of people’s tribunals, for example the Sir Bertrand-Russel tribunal in relation to American’s war crimes in Vietnam. The Tokyo tribunal, Afghanistan, and the Turkish tribunal in relation to Iraq. My Learned colleague, as Professor Bhagwat has sat on some of these tribunals - the fact that the KL War Crimes Tribunal cannot impose its judgment on the aggressors is not the heart of the matter. All trials in abstentia suffer from this problem of lack of enforcement. Despite its

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limitations, I believe the KL Tribunal can make an impact, in that, it can mobilise conscience of the world community, it can report its findings to the General Assembly, it can submit its findings to the ICC, it can report its finding to the 104 countries that have ratified the Treaty of Rome, it can transmit its findings to the many peace-loving groups in the US and Europe and request them to exert democratic pressure on their leaders to end this senseless slaughter of the innocents.

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On the 2nd issue of exemption for nations from international humanitarian law. I wish to say that this issue can be tackled in 2 ways. First of all in domestic law, and secondly in international law.

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As far as domestic law is concerned, within the legal system of a nation, who has the authority, if at all, to abrogate an international treaty or convention is a question of domestic law. Under what procedure may a nation abrogate a treaty or convention is again a question of domestic law. In the context of the USA for example, treaties are incorporated into the corpus juris of the land - to the body of law of the land. The Constitution recognises that treaties are part of the supreme law. The US President has, therefore, no authority whatsoever, on his own, to abrogate the law of this Constitution. However, under Article 1 of ot the US Constitution, the US Congress has a power to enact legislation superceeding a treaty obligation because the matters embodied in the Geneva Conventions address matters within the scope of the Congress’ Article 1 powers. The President lacks the constitutional power without Congressional authorization to violate these treaties. Whether the US Congress has formally superceeded or abrogated the country’s obligation under the Geneva Convention is a matter, the veracity of which needs to be looked. However, I must quickly act that I wish to point out that the US President acted clearly unconstitutionally. But whether the US


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Congress can abrogate treaties, that’s a separate issue. My personal view of that, on that point is that there are 2 principle sources of the law of armed conflict. First, customs has relected in the practice of nations. Customary international law. And second, international agreements, whether they are described as treaties, conventions or protocols. I believe that the international law of war and peace has developed over the last 50 years in such a way that no nation anymore can claim to brush aside simply because it is a sovereign nation. If there is a treaty, that treaty is binding and cannot be revoked. Even if a nation is not a signatory to a treaty but has claimed to revoke it, even then, I believe, nations are not free to legislate, to permit themselves to declare wars, to conquer territories, to enslave people, to commit genocide, crime against humanity, and torture. I think the jurisdiction of the present ICC, International Criminal Court is in clear support of this point of view that nations are not above international law anymore. I also wish to add that a State cannot exempt its citizens from the purview of international law. With this I’ll end my submission. Thank you. Dato’ Kadir : Thank you … Shad .. now sister here . .. Bhagwat :

I concur with the decision of the Tribunal for separate reasons. The Kuala Lumpur War Crimes Commission, being conscious that several international treaties and conventions for the protection of humanity and the advancement of civilization are being violated in a global war of terror in different military theatres. Even as the colonial restructuring of countries and their economies by military and other means continues, seriously engaging even ancient rules for peaceful co-existence, has referred for the advisory opinion

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of this Tribunal an issue of substantial public importance to international law at a critical moment of history when there is once again an absolute descent into barbarism, compounded by the misuse of advance technology for legal weaponry even as the people of the world demand accountability for this criminal conduct, I hold that the Tribunal has jurisdiction to answer this advisory opinion.

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The International Court of Justice in 1996 in the advisory opinion on the legality of the threat or use of nuclear weapons, when the General Assembly of the United Nations sought the opinion, with the unanimity of all 14 judges on the bench held that, “The extensive codification of humanitarian law and the extent to the accession to the resulting treaties as well as the fact that the denounciation clauses that existed in the codification of instruments have never been used have provided the international community with a corpus of treaty rules, the great majority of which have already become customary law and which reflected the most universally recognised humanitarian principles”. These rules indicate the normal conduct and behaviour expected of States.

Further, the Court held, that all States are bound by those rules in the Hague, the Geneva Conventions, the additional Protocols which, when adopted, were merely the expression of the pre-existing customary laws such as the Barton’s clause, re-affirmed in the 1st Article of Additional Protocol 1. The Court held that, “There can be no doubt as to the applicability of humanitarian law to nuclear weapons”. The Court’s advisory opinion highlighted that in their written statements, filed through authorised representatives before the Court, the United States, the UK and the Russian Federation had conceeded that, “laws of armed conflicts governs the use of nuclear weapons, just as it governs the use of conventional weapons”.

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Almost 50 years earlier at the trial of the major war criminals, the Nuremberg International Military Tribunal had already held that the humanitarian laws of war included in the Regulation to the Hague Convention of 1907 under the laws of war were recognised by all civilised nations and were regarded as being declaratory of the laws and customs of war. It must be understood by all concerned citizens, lawyers, jurists, un-political leaders present here, that if we are interested in the prosecution of war criminals, that international law and national law are over and … Both have to lead to change. Presently there is an attempt by certain governments to obfuscate the interpretation of treaties and conventions, to further the exercise of arbitrary perogative by Heads of States/Governments, and to prevent the prosecution of war criminals within national and international jurisdiction though the constitutional laws of many countries mandate adherence and respect for international treaties and the Constitution of the United States in Article 6 provides that “treaties which have been made under the authority of the United States shall be the supreme law of the land”. The US President has passed only with the advise and consent of the Senate to make treaties provided that Senate concurs. The US War Crimes Act 1966, the Detainee Treatment Act 2005 and the US Army Field Ma… are submitted before us prohibit violations of the law’s of no one provide for prosecution. The principle of State sovereignty for crimes of oppression, war crimes and crimes against humanity was removed once and for all by the judgment at Nuremberg and it no longer is good law to hold that there is a concept of State impunity or the impunity of a Head of State. The juristic principle that every treaty is binding upon the parties and must be honoured and implemented in good faith is reflective in the legal maxim pacta sunt servanda which constitutes the foundation of the law

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of treaties, a well established principle of international law, recognised by the international committee, borrowed by Europeans colas .. from Roman law. But, historical and pedigree records established, that this doctrine has not evolved with the Roman Empire, or after the emergence of one European State. This doctrine is of very ancient origin observed over centuries by many civilisations: Buddhist, Hindu, Chinese, Islamic, Christian, African, Jewish and by native Americans on the continent of Americas among other civilisations long before it was adopted by the modern European States. Thereafter, I have to emphasize, that after the 43 of the Vienna Convention of the Law of Treaties codifies the principle of customary international law as follows, “The invalidity, termination or renunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation as a result of the present convention, all the provisions of the treaty shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty�. It follows, that no Head of State/ Government can unilaterally exempt itself from complying with the treaty/convention such as the Geneva Conventions duly ratified by the State or on accession, with or without reservation. Further, even if the treaty or convention, as in the 8 Conventions On The Laws Of War, and the Geneva Convention adopted before the Vienna Convention of the Law of Treaties came into force, if it embodies the customary and general principles of international law universally accepted and recognised by the international community or accepted as jus cogens that is peremptory norm or principle of general international law from which


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no derogation is permissible, refer to Article 53 of the Vienna Convention of the Law of Treaties, the obligation is binding even on application, revocation, denunciation of the treaty or convention. A logical conclusion which arises - on careful consideration of the multi-lateral nature of many treaties that mentions, including the late Conventions on the Laws of War, the Geneva Conventions, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Nuremberg Charter on other conventions which are multi-lateral treaties enjoying a broad accession and which embodies preemptory custody, norms and principles of international law recognised and accepted by the community of nations, is that every State which has ratified these Conventions or has acceeded to the conventions which constituted international humanitarian law has jurisdiction to enforce the rights and obligations under the treaty convention within its national jurisdiction. If Malaysia is party to any one of these treaties, it has a right to convene a war tribunal for the violation of international humanitarian law because these are multi-lateral conventions which places an obligation, both a duty and an obligation on every State which is a member State of the United Nations, or even on a State which is not a member State. The United Nation Human Rights Committee in its 2004 report has opined that, “the International Covenant On Civil And Political Rights applies also in situations of armed conflict, to which the rules of international humanitarian law are applicable�. I would like to quote Justice Mohammed Shahabuddeen of Guyana who in accepted dissenting opinion on the legality of the threat or use of nuclear weapons, while supporting the Court on some issues, which were decided unanimously,

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he aptly quoted the eminent Arab philoshopher, jurist and historian Ibn Khaldun’s observation from outstanding treaties, “The Muqaddimah: An Introduction to History” and the explanation of Ibn Khaldun for the evolution of laws, in perceptive analytical and philoshophical words of universal relevance, Ibn Khaldun maintain, “Laws have their reason in the purposes they are to serve. Jurists mention that injustice invites the destruction of civilisation with the necessary consequence that the species will be destroyed. Laws are based on the effort to preserve civilisation”. Logically then, I hope, that the interpretation of law is required to confirm to the necessity of protecting humanity and human values without which civilisation is not possible. Another learned Judge of the International Court of Justice in the same proceedings expressed the view that, “the court should not confuse policy with law” - this was Judge Shi-Jiong(?) of China. He emphasize that policy should be regulated by law, and not vice-versa. And whilst stressing the democratic principle in international relations which has all but broken down, he maintained that the International Court of Justice as the principal judicial organ of the United Nations cannot view this aples … of the international community in terms of material power alone. The structure of the international community, he maintained, is built on the basis of sovereign equality. Therefore, any undue emphasis on this appreciable section would not only be contrary to the principle of sovereign equality of States but also makes it more difficult to give an accurate and proper view of what law is. To conclude, the interpretation of treaty obligations cannot be usurped by a Head of State/Government or of a powerfully clout of nations. And the higher objective of the implementation of rights and obligations under a treaty or convention is the protection of humanity, the advance of civilization,


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and harmonious cooperation between governments and the peoples. In this context it is necessary to state that treaties or conventions cannot be misused as it protects for unjust santions with a view to impose severe economic hardship on civilian populations tantamount and in fact to a declaration of war in violation of United Nations’ Charter. In an attempt to weaken a country, … for and military assault while ignoring the roots of violence and … weapons, including nuclear weapons in the armory of nuclear weapons’ States, and the illegal nuclear arsenal of close alliance partners. The President of the United States declared in 2007, in violation of all international humanitarian law, that micro nukes of less than 20 kilotonnes, 3 times as powerful as Hiroshima and Nagasaki bombs were to be classified in the arsenal of the United States of America as conventional armaments. Why? we have seen the different wars which have taken place in the 20th century. We saw the 1st World War which is termed “The Banker’s War” in view of the nature of spoils and financial reparation awarded to the victors by the Treaty of Versailles. But the present war which we are facing has lasted for a longer duration than either the 1st World War, or the World War 2 which followed the Great Depression. When Mediterranean nations on both sides with exceptions restructured, redivided, repopulated and controlled States to seize resources - a primitive and barbaric method of capital accumulation imposing death and mutilation on millions. The question whether the nature of the organization of the financial and political system of certain States predisposes them toward wars of aggression or occupation for the seizure of resources in successive wars to open up economies. As in the Opium War to force opium onto China by the … Company.

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Similar to the present war in Afghanistan raised by the NATO Alliance, among other … wars to open up markets or for seizure of resources with consequent inability and refusal of such States to respect international treaties or conventions remains unfortunately unanswered in juridical terms.

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Despite the judgment at Nuremberg, where there was references to the Organization of the Nazi party and source of funding which was progressively diluted. In 1922, the office of Naval Intelligence, on the US …. asset detailed services rendered by the Navy in protecting American business interests and in seeking out commercial and investment opportunities. These questions are, …. political questions, eventhough conspiricies to it was a regression and the intention and objective of a crime are elements in criminal law and in international criminal law. I have to thank the President of the Tribunal for the leadership given to the Tribunal.

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Dato’ Kadir : Thank you Bhagwat. We now call upon Francis A Boyle to say something. 25

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Mr Boyle:

Assalamualaikum, thank you for having me here today. First I want to express how honoured and pleased I am to be sitting here as a judge on this Tribunal that carry forward the vision of Dr. Mahathir Mohamed and the Kuala Lumpur Declaration and Initiative to Criminalise War that we all worked on 4 years ago. As for the question of jurisdiction, first I will just like to refer to Article 38 of the Statute of the International Court of Justice, the World Court, that says quite clearly, in paragraph (d) that, “Judicial decisions”. All judicial decisions are subsidiary means of the determination of the rules of international law. So in other words, any judicial decision, whether by this Tribunal, the Supreme Court of Malaysia, the Supreme Court of the United


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States of America or any other county, or even the World Court in another proceeding, like in an advisory proceeding are all on the same footing as far as the statute of the World Court is concerned. They are all subsidiary means for the determination of the rules of international law. Now, as to the substance of the advisory opinion, as shall we have a unanimous opinion on all points, and that’s hard to do because when you have 7 lawyers, you usually have 13 opinions. But today we’re unanimous. As for the substance, I would agree with the excellent analysis and submissions by Professor Nijar this morning. Some might say that the Nuremberg Charter of 1945 and the Nuremberg judgment of 1946 were not much more than victor’s justice. However, then came the unanimous decision in a resolution by the UN General Assembly affirming the principles of law set forth in the Nuremberg Charter and the Nuremberg judgment. So every State in the world said that those principles were international law, and made the Nuremberg Principles customary international law binding on every State in the world even still as today. And as Professor Nijar correctly pointed out, principles of jus cogens, peremptory norms of international law that cannot be denounced, or changed, or opted out of, or exempted from by anyone, including a Head of State, or Head of Government. Now, pursuant to the request of the UN General Assembly, the International Law Commission codified these Nuremberg principles succintly. And let me just read to you the relevant Nuremberg principles of 1950 that are directly concerning the advisory opinion today. Nuremberg Principle 1: “Any person (Head of State, Head of Government) who commits an act which

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constitutes a crime under international law is responsible therefore and liable to punishment”. Nuremberg Principle 2: “The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law”. So Heads of State, Heads of Government are responsible eventhough they might have been able to convince their Congress to pass legislation as reprehensible as the Military Commissions Act, which Professor Nijar also commented on today quite authoritatively. Nuremberg Principle 3 - and this is right on point: “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law”. That directly applies to the request that the Advisory opinion and clearly answers it, as we have done unanimously today. Now, these Nuremberg Principles that I mentioned, were later incorporated by the United States government itself. In Department of the Army Field Manual 27-10, the laws of laying warfare, that are still binding today upon the United States government, and even as cited and recognised by the United States government including military court martial proceedings. And let me just quote this relevant portion here today again because I’m citing here the United States’ government own interpretation of the Nuremberg Principles and international law. Section 2 - Crimes Under International Law, paragraph 498 - any person, whether a member of the Armed Forces or a civilian who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.


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Such offences in connection, crimes againt peace, crimes against humanity, and war crimes. Although this ‌ recognizes the criminal responsibility of individuals for those offences which may comprise any of the foregoing types of crimes, members of the Armed Forces will normally be concerned only with those offences constituting war crimes. What that means then, is that United States government officials not only are accountable for war crimes, but are also accountable for crimes against peace and crimes against humanity. So this US Army field manual 27-10 applies directly to President Bush as Commander-in-Chief of the United States Armed Forces and down through the chain of command to Secretary of Defence Rumsfeld and all his generals and officers who committed the torture and all the other war crimes and crimes against humanity. It would also apply to other US civilian government officials such as AttorneyGeneral Ashcroft, White House Counsel Gonzales, National Security Advisor Condalezza Rice, and the attorneys involved who gave this illegal and criminal advise such as Bybee, Yoo, Goldsmith and many others. And by the way, who knowingly gave illegal, criminal advise, and aided and abetted war crimes just as the Nazi lawyers did, who were prosecuted in the Justice case at Nuremberg. We are at a most dangerous point in the history of the world today. We have leaders of the United States government armed with nuclear weapons, as Professor Chossudovsky said, treating them as if they were conventional weapons and leaders who have now openly and publicly repudiated the principles of law, of international law, that the United States government applied to the Nazi leaders for the atrocities they committed during the 2nd World War, and in the process of doing this, these United States government officials have made Nazi arguments made by the lawyers for the Nazi

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defendants at Nuremberg. What we as human beings do about this situation is up to the conscience of every one of us. Thank you.

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Dato’ Kadir : Thank you ... Next I move to Judge Salleh. Prof Salleh :

Good afternoon. I shall be brief and go straight to the point. On the 1st issue of threshold …, I concur with the Judges of the Tribunal that we have jurisdiction. I so hold in the light of the readiness of the Applicant to amend this application in the morning.

On the 2nd issue as to whether a Head of State or a Head of Government can exempt itself from its treaty obligations in dealing with international humanitarian law despite that I have difficulty in the afternoon, factually finding the direct relevancy and admissibility of the submission in the afternoon in the light of Article 23 of the Rules of Procedure. I must say that I have been satisfied to be convinced by the wonderful submission by Professor Nijar in the morning and I therefore concur with the Judges of the Tribunal that no Head of State, no Head of Government may do so.

I think we should end this short Advisory Opinion in extempore mode, as the President had said, by giving you two quotations; one from an old historical document but that work has been taken over by … surpassed the Nuremberg principles, and I just go on the last, which is a quote I wanted to give you … in a publication entitled “The Status of International Treaties and Human Rights” by Professor Menno T Kamminga from Maastricht University. He said, “Obligations under human rights treaties not only enjoy a superior ranking in comparison to other international standards but they are also permanent and inalienable”. In other words, he said while States may come and go, obligations under human rights treaties remain … . Thank you.

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Thank you Professor. Pause here for a moment. I observe. I can sense the feeling of the audience … , persons in the public gallery … but please bear in mind, this is a Court, a Tribunal, and we say a Court of conscience. Let us have some decorum while the Tribunal is in session. While we appreciate the clappings, it shows your, the feeling, I think, but let us keep to the decorum, please. Just to remind that while the Tribunal is in session. Please bear. We understand your appreciation, but please, don’t have to clap your hands. Thank you very much. Now I move on.

Judge Webre: Thank you very much. Thank you Mr. President. I too concur of … the question of jurisdiction and the substantive issues raised in the question and many of the points have already been raised by my fellow judges and so I would just like to highlight 2 issues here in one; one of the precedents in the International Court of Justice and also highlight a important very important provision of the London Charter of 1945 that established the Nuremberg Tribunals which really have ushered in the modern era of accountability for war crimes. Now, as we all know the primary sources of international humanitarian law are treaties, customary law, case law, military doctrine contained in field manuals, we just saw an example of that, military publications and regulations, international courts, ad hoc tribunals, such as our own tribunal here, commissions, domestic courts … to interpret international humanitarian law and the International Court of Justice has addressed international humanitarian law in several of its judgments and I like to refer to one that bears squarely, I think, on the issue at hand here and that was when the International Court of Justice in a November 18, 2008 judgment in Croatia -vs- Serbia.

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In that case, International Court of Justice functionally decided that respondent Serbia had not filed a denunciation on the Convention on the Prevention and Punishment of the Crime of Genocide, otherwise known as the Genocide Convention, hence Respondent Serbia lacked the authority to unilaterally exempt itself from the provisions of the Genocide Convention which it sought to do. Respondent Serbia had argued that it had authority to unilaterally exempt itself from the provisions of the Genocide Convention because the Federal Republic of Yugoslavia had not assumed the obligations of its predecessor, Socialist Federal Republic of Yugoslavia under the Genocide Convention. The International Court of Justice, found that beginning on April 27, 1992, the Federal Republic of Yugoslavia would be bound by the obligations of a party in respect of all the multi-lateral conventions to which the Socialist, the predecessor Socialist Republic of Yugoslavia had been a party at the time of its dissolution subject to any reservations, lawfully made, by limiting its obligations. It noted that it is common ground that the Genocide Convention was one of the conventions and that the Socialist Federal Republic of Yugoslavia had made no reservation to it and thus the Federal Republic of Yugoslavia in 1992 accepted the obligations of that convention including Article 9 providing for the jurisdiction of the International Court of Justice and that jurisdictional commitment was binding on the respondent. So, this is a force where really, the International Court of Justice, and I mention it here because I think one of our function here as a tribunal of conscience is to begin to re-empower and reeducate ourselves and re-educate the sources of international law and bring them back and re-‌ them.


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The 2nd issue that I would like to highlight is to go back and really re-read what we can call the seed of our modern era of the prohibition of war crimes and that is the London Charter of the International Military Tribunal which was published in August 8, 1945, quite an ironic date, which first defined crimes against peace, crimes against humanity and war crimes.

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It explicitly provided, in Article 7 and I quote, this is very important, “The official position of defendants, whether as Heads of State, or as ... government departments shall not be considered as freeing them from responsibility or mitigating punishments�. This is in the Charter that established the modern frameword on the prohibition, or the post-war framework, on the prohibition of war crimes and I think it’s important, just to very briefly read, if I might Mr. Chairman, Mr. President, exactly what the definitions of crimes against peace, war crimes, crimes against humanity were in this document because we can see how apropos they are of the instant application in the case before us.

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The following acts, or any of them, are crimes kind within the jurisdiction of the Tribunal for which there shall be individual responsibility.

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A. This is Section, Article 6, subsection (a) - Crimes against peace, namely, planning preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assuarance or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. I think we heard in the excellent presentation this morning by the Commission that on the very face of the Memoranda of the US Government, there is prima facie evidence of conspiracy.

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B. War Crimes - namely, violations of the laws or customs of war. Such violations shall include, but not be limited to - now let us reflect on the application to the instant case - murder, ill-treatment or depracation to slave labour or for any other purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners of war or prisoners of the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity C. Crimes Against Humanity - namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war or persecutions of political, or racial or religious grounds in execution of, in connection with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where a perpetrator, leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or a conspiracy to commit any of the foregoing upon crimes are responsible for all acts performed by any persons in execution of such plan. D. Article 7 -The official position of Defendants whether as Head of States or responsible officials in government departments shall not be considered as freeing them from responsibility or mitigating punishment. That is the London Charter. Under international law, Heads of State, or States, may not exempt themselves unilaterally from responsibility for crimes or crimes of these, crimes against humanity, crimes of genocide and war


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crimes. Ever since the London Charter, the Nuremberg trials, this prohibition has … as my learned colleagues have said, “a practice of international law and hence part of the customary international law or jus cogens”. I thank you for my time. Thank you. Dato’ Kadir:

Thank you Judge Webre. Last but not least I invite Judge Tunku Sofiah Jewa.

Tunku Sofiah: Thank you Mr. President. I regret that whilst I concur with the opinions of the other members of the Tribunal that it has jurisdiction to hear the application of the Commission and that under international humanitarian laws States having become parties to such treaties cannot withdraw from them or denounce their obligations under them unless such States first abrogate the relevant treaties. I am at odds with my Learned Brothers and Sister that there is a need to amend the original question. The Kuala Lumpur War Crimes Tribunal was seised with a request from Kuala Lumpur War Crimes Commission for an advisory opinion filed with the Registrar of the Tribunal on the 8th day October, 2009; and which, in its original form read as follows: “Whether a Head of State and of Government can unilaterally exempt itself from complying with any provisions of any international treaties or convention, such as the Geneva Convention, duly ratified by the State without first abrogating the relevant treaty convention?” The question has now been accordingly amended. I have given full consideration to what was submitted by the Commission this morning and my opinion at the Applicant’s question is as follows:The 1 st question that needs to be addressed is whether the Tribunal has jurisdiction to adjudicate on the matter now before it. In first place, I am of

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the view that in considering the jurisdictional aspect of the question, the Tribunal needs to be concerned only with Article 7, paragraph 2 of the Charter, and not necessarily with paragraph 1. Paragraph 1 deals with jurisdiction of both the Commission and the Tribunal, whereas paragraph 2 deals only with jurisdiction of the Tribunal to give advisory opinion. An advisory opinion is essentially an opinion issued by a Court of competent jurisdiction that does not have the effect of resolving a specific legal issue but merely advises on the constitutionality or interpretation of the law. The first question that needs to be addressed is: Whether the Tribunal has jurisdiction to adjudicate on the matter now before it? The Charter of the Kuala Lumpur War Crimes Commission under its Article 7, paragraph 2, clause 2(a) provides that, “The Tribunal may, in its absolute discretion, give an advisory opinion on any question of international law of substantial public importance at the request of the War Crimes Commisssion, the legal team, the parties before the Tribunal, or any one of the amicus curiae appointed by the Tribunal in any particular case”. Thus, before deciding whether or not to give the opinion sought, the following 3 basic requirements must be complied with. One, the Applicant must be a qualified entity or person under Article 7. Two, the question sought must pertain to international law. Three, the international law must be one of substantial public importance. The Commission is clearly one of those envisaged as a proper applicant under Article 7 and there is therefore no issue of the fulfillment of the above first requirement. The crux of the Applicant’s question relates to treaties, which under Article 2, paragraph 1(a) of the Vienna Convention on the Law


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of Treaties defines a treaty as, inter alia, “An international agreement concluded between States, in written form, and governed by international law”.

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The 2nd requirement that the question posed for consideration by the Applicant must pertain to international law is likewise fulfilled. Having complied with the international law requirement of the application, there remains a final element that needs to be satisfied before the Tribunal can assume jurisdiction on the Commission’s application, and that is, the international law in question must be one of substantial public importance.

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On this final requirement, I shall now make reference to one of the basic international law principles, particularly relative to the law of treaties which is encapsulated in a Latin legal maxim, known as pacta sunt servanda. The literal English translation is, “contracts are to be kept” or “promises must be honoured”. McMahon in his Law of Treaties states that, “In every unqualified legal system, there are certain elementary and universally agreed principles of which it is almost impossible to find specific authority, whether it is in the common law of England or the United States, no specific authority can be found regarding the principle that a person must perform his contracts, yet almost every decision on contract presupposes the existence of that principle. The same is true of international law. No government would decline to accept the principle pacta sunt servanda that is the principle that States are bound to carry out in good faith the obligations they have assumed by treaty. The very fact that States find it necessary to spend so much time, so much effort that the factum has ceased to exist or that the act complained of is not a breach of it either by written or an implied term or for some other reason is the best acknowledgment of that principle. A long series of intergovernmental discussions of this nature can be invoked to show that there is a general presumption against the

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existence of any right of unilateral termination of a treaty”. It follows therefore that any attempt to transgress the time-honoured principle is implied in the question posed to the Tribunal. It is to my mind one of substantial public importance which the Tribunal ought not to refuse to consider. Article 7, paragraph 2(a) of the Charter in similar vein as that of Article 65, paragraph 1 of the Statute of the International Court of Justice is discretionary in character. Although I am satisfied of the Tribunal’s competence to entertain the Commission’s request, it remains to be considered whether, in the circumstances of this case, the Tribunal should express this competence or, on the contrary, decline to do so whether on the grounds already referred to, or for any other pertinent reason. In my view, the following issues are pertinent for the Tribunal’s consideration. 1.

Can the Tribunal deal with an application for advisory opinion without any supporting documents attached to it?

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As neither the Head of State or the State involved is identified in the application, can the question posed therein be regarded as hypothetical or abstract and outside the domain of this Tribunal?

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Since an advisory opinion does not have the effect of resolving a specific legal case, would the Commission’s application result in an exercise in futility?

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In Western Sahara advisory opinion, one of the preliminary issues considered by the World Court in determining whether or not to exercise its discretion in acting on an advisory opinion request


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was: Whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed question of fact, the determination of which is necessary for it to give an opinion in conditions comparable with its judicial character? Article 65, paragraph 2 of the Statute of the ICJ provides that questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required and accompanied by all documents likely to throw light upon the question. It follows therefore, that in any request for advisory opinion from the ICJ, the application must be accompanied by all relevant documents and failure to do so would invariably result in a futile exercise on the part of the Applicant. Whilst an almost similar provision appears under Article 7, paragraph (b) of the Charter, the requirement that the application must be accompanied by all document likely to throw light upon the question is qualified with the words, “where necessary”. Thus, to assert that the Commission’s request for advisory opinion must be disregarded on the ground that it was not accompanied by all document likely to throw light on the question sought is unwarranted. Given the fact that the requirement to do so under the Charter not mandatory. Now, is the question posed hypothetical or abstract and outside the purview of the Tribunal? In Malaysia and in many other countries, courts of competent jurisdiction would not waste their time and energy on matters purely hypothetical. Such matters invariably fall within the domain of moot courts in law schools and colleges. Granted that the

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application of the Commision, as worded, makes no reference to any named Head of State or Government, the imperial question may be regarded as hypothetical, in other words, theoratical, or abstract. But, would that make it outside the realm of consideration by this Tribunal? The jurisdiction of the ICJ to give advisory opinion is found in both the UN Charter as well as the Statute of the ICJ. Under Article 96, paragraph (a) of the United Nations’ Charter, it is provided that the General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. Under Article 65, paragraph (i) of the Statute of the ICJ it is provided that the Court my give an advisory opinion on any legal question at the request of whatever body may be authorised, or in accordance with the Charter of the United Nations to make such a request. In the case of Conditions of Admission of a State to Membership in the United Nations, an application was made to the ICJ by the United Nation General Assembly for an advisory opinion, which in part reads as follows, “Is a member of the United Nations which is called upon to pronounce itself by its vote on the admission of a State to membership in the United Nations to radically entitle, to make its’ consent to the admission dependant on conditions, now expressly provided”. No country was in fact named in the request for the aforesaid advisory opinion and during the hearing of the application it was argued that the Court should not deal with the question couched in abstract terms. In dismissing this particular argument, the Court responded as follows: “That is a mere affirmation devoid of any justification according to Article 96 of the Charter and Article 65 of the Statute. The Court may give an advisory opinion on any legal question, abstract


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or otherwise”. And in the same case, Judge Ativido(?) in his supporting opinion had this to say on theoratical or hypothetical question, “That a Court should be asked for an opinion on theoratical question may seem strange but it must not be forgotten that the International Court of Justice has a double character that of Tribunal, and that of Counsel. And it is quite fitting for an advisory body to give an answer in extracto which may eventually be applied to several de facto situation. In like way I am therefore of the opinion that there is nothing improper for this Tribunal to consider the question posed by the Commission however hypothetical or abstract it may seem to be”.

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Now, is the question, is the application a futile exercise? Granted, that advisory opinions are non-binding, many jurists have expressed the views, which I fully support, that this non-binding character does not mean that advisory opinion are without legal effect. As Peter HF Backer, a noted international lawyer wrote, “This non-binding character does not mean that advisory opinion are without legal effect because the legal reasoning embodied in them reflects the Court’s authoritative views on important issues on international law and in arriving at them the Court follows essentially the same rules and procedures that governs its binding judgment delivered in contentious cases”.

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In exercising this discretion, the Tribunal shall be guided by the practice of the ICJ in that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character, be it contentious cases, or when dealing with applications for advisory opinions.

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for an advisory opinion which it is competent to entertain, and that we should comply with that request, the Tribunal should now examine the question which has been referred to it by the Commission. The request by the Commission for advisory opinion, although presented as one single question, may be approached in many ways. But for my part I shall do so on 2 different planes.

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One, whether a Head of State, or Head of Government can escape liability from existing and binding treaty or convention obligations without first abrogating them?

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Two, whether treaties involving international humanitarian laws may be abrogated?

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As regards to the first question, the general rule under international law is that if a treaty contains an express denunciation clause, it may terminate in accordance with its terms. A Head of State or Government can therefore escape liability from existing and binding treaty or convention obligations only after first abrogating them, but not before that. As regards the second question, the rule is that treaties involving international humanitarian laws are not capable of denunciation or abrogation. Whilst a Head of State or Government may effectively do so under its own municipal law which is for the State’s own judiciary to determine, there are considerable authorities and precedents in the realm of public international law to show that no Head of State or Government may unilaterally grant himself immunity or escape liability from his international obligations in respect of internatinal humanitarian laws. Such a unilateral conduct or denunciation of international humanitarian obligation is in itself a breach of the international obligation.


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For these reasons, I would answer the Commission’s question in the negative. Dato’ Kadir:

Thank you Sofiah. Now as earlier mentioned, we hope that in the very near period of time we’ll be coming up with our reasoned decision concerning this application for an advisory opinion. So now, I’m glad to thank brother judges, sister judges of the Tribunal for their forbearance and tolerance and patience, and the Applicants and the parties and members of the public who have shown concern, their interest in the proceedings, the first of this kind in the country. Anyway, we on our part, we have that heavy burden to shoulder. So, leave it to us and we’ll come up with a reasoned decision very soon and as for now, we’ll like to adjourn the proceeding to a date to be fixed. So the Tribunal sitting is adjourned. Thank you.

Nizam Bashir: Please be upstanding.

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APPENDIX C

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CHARTER KUALA LUMPUR WAR CRIMES COMMISSION

& RULES PROCEDURE AND EVIDENCE KUALA LUMPUR WAR CRIMES TRIBUNAL


TABLE OF CONTENTS


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CHARTER KUALA LUMPUR WAR CRIMES COMMISSION

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PREAMBLE....................................................................................... 309 PART 1 - THE COMMISSION

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Article 1 - Establishment of the Institutions............................... 310 Article 2 - Objectives of the Commission.................................... 310 Article 3 - Seat of the Institutions ................................................ 311 Article 4 - Legal status and powers of the Commission & the Tribunal................................. 311 Article 5 - Composition of the Commission............................... 311 Article 6 - The Tribunal.................................................................. 312 Article 7 - Jurisdiction of the Commission and the Tribunal... 313 Article 8 - Crimes against Peace................................................... 314 Article 9 - Crimes against Humanity........................................... 314 Article 10 - Genocide........................................................................ 315 Article 11 - War Crimes.................................................................... 315 Article 12 - Legal Team.................................................................... 322 Article 13 - The Secretariat.............................................................. 322 Article 14 - Financial matters.......................................................... 323 Article 15 - Miscellaneous provisions............................................ 323 PART 2 - RULES OF PROCEDURE AND EVIDENCE KUALA LUMPUR WAR CRIMES TRIBUNAL CHAPTER I - GENERAL Article 1 ......................................................................................... 324 Article 2 ......................................................................................... 324 CHAPTER II - THE CHARGE Article 3 ......................................................................................... 325 Article 4 ......................................................................................... 325 Article 5 ......................................................................................... 326 CHAPTER III - SERVICE OF THE CHARGE & TRIAL DATES Article 6 ......................................................................................... 326 Article 7 ......................................................................................... 326 Article 8 ......................................................................................... 326


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CHAPTER IV - ORAL & DOCUMENTARY EVIDENCE Article 9 ......................................................................................... 327 Article 10 ......................................................................................... 327 Article 11 ......................................................................................... 327

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CHAPTER V - FURTHER WRITTEN STATEMENTS Article 12 ......................................................................................... 328 Article 13 ......................................................................................... 328 Article 14 ......................................................................................... 328 Article 15 ......................................................................................... 328 Article 16 ......................................................................................... 328 Article 17 ......................................................................................... 329 Article 19 ......................................................................................... 329 Article 20 ......................................................................................... 329 Article 21 ......................................................................................... 329 Article 22 ......................................................................................... 329 Article 23 ......................................................................................... 329 Article 24 ......................................................................................... 330 Article 25 ......................................................................................... 330 Article 26 ......................................................................................... 330 Article 27 ......................................................................................... 330 Article 28 ......................................................................................... 330 CHAPTER VI - VERDICT Article 29 ......................................................................................... 330 Article 30 ......................................................................................... 331 Article 31 ......................................................................................... 331 CHAPTER VII -REGISTER OF WAR CRIMINALS Article 32 .........................................................................................

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CHARTER OF THE KUALA LUMPUR WAR CRIMES COMMISSION PREAMBLE The Parties to this Charter, Conscious that grave crimes continue to threaten the peace, security and well-being of the world, Mindful that these crimes must not be allowed to go unpunished, Determined to bring to justice the perpetrators of these crimes and to prevent the repetition of such crimes in the future, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, Emphasizing in this connection that nothing in this Charter shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State, Determined to establish an independent War Crimes Tribunal with jurisdiction over the most serious crimes of concern to the international community as a whole, Resolved to guarantee lasting respect for and the enforcement of international justice, Recalling that the Kuala Lumpur Foundation to Criminalise War Incorporated (formerly known as the Kuala Lumpur International Peace Foundation Incorporated), under its Statute IV, has provided for the establishment of the following institutions,


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Have agreed as follows:

PART 1 THE COMMISSION Article 1 Establishment of the Institutions T he re shal l hereby be es tablis h ed th e K u a la L u mp u r War Crimes Commission (“the Commission”), the Kuala Lumpur War Crimes Tribunal (“the Tribunal”), the Kuala Lumpur War Crimes Legal Team (“the Legal Team”) and the Kuala Lumpur War Crimes Secretariat (“the Secretariat”), whose functions and jurisdiction, respectively, shall be governed by the provisions of this Charter. Article 2 Objectives of the Commission 1.

The general objectives of the Commission are to – (i)

To receive and investigate complaints from victims of wars and armed conflicts in relation to crimes against peace, war crimes, crimes against humanity and other like offences as recognized under international law;

(ii)

To put an end to all war crimes and crimes against humanity currently perpetrated by any government in any part of the globe;

(iii) To bring war criminals of any nationality to justice; (iv) To prevent the recurrence of war crimes, crimes against peace, crimes against humanity, in the future. 2.

The specific objectives of the Commission include the investigation of the following – (i)

War Crimes committed in Iraq;

(ii)

War Crimes committed in Palestine;


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(iii) War Crimes committed in Afghanistan; (iv) War Crimes committed in Lebanon; (v)

Other War Crimes referred to the Commission. Article 3 Seat of the Institutions

1.

The seat of the Institutions shall be in Kuala Lumpur, Malaysia.

2.

The Commission, the Legal Team and the Secretariat shall operate from their headquarters in Kuala Lumpur, but the Tribunal may sit anywhere else outside Kuala Lumpur, whenever it considers it necessary or expedient to do so. Article 4 Legal status and powers of the Commission & the Tribunal

The Commission and the Tribunal shall have international legal personality. They shall also have such legal capacity as may be necessary for the exercise of their functions and the fulfillment of their purposes. Article 5 Composition of the Commission 1.

The Commission shall consist of not more than 11 eminent persons, referred to as “the Commissioners�, nominated by the Kuala Lumpur Foundation to Criminalise War.

2.

The Commissioners may be of any nationality but need not possess any legal qualification.

3.

When discharging their duties in relation to Article 2 of this Charter, a quorum of five (5) members shall suffice to constitute the Commission.


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Article 6 The Tribunal 1.

The Tribunal shall serve as the judicial arm of the Commission.

2.

The Tribunal shall comprise a body of eminent persons with legal qualifications, regardless of their nationality, not exceeding 15 and nominated by the Kuala Lumpur Foundation to Criminalise War.

3.

The Deputy Chairman of the Foundation shall be the President of the Tribunal and in that capacity, he shall have a casting vote.

4.

Every member of the Tribunal shall, before taking up his duties, make solemn declaration that he will exercise his powers impartially and conscientiously.

5.

A quorum of five Judges shall suffice to constitute the Tribunal in the event that the President is indisposed or unable to discharge his duties, the judges shall elect from among themselves an Acting President.

6.

The Tribunal shall appoint its Registrar and may provide for the appointment of such other officers as may be necessary.

7.

The Tribunal shall make its own rules for carrying out its functions including holding case management proceedings. In particular, it shall lay down rules of procedure and evidence.

8.

The official language of the Tribunal shall be English. The Tribunal shall, at the request of any party, authorize a language other than English to be used by that party.

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The hearing by the Tribunal shall be public, unless the Tribunal shall decide otherwise or unless the parties demand that the public be not admitted.


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Article 7 Jurisdiction of the Commission and the Tribunal 1.

The Commission and the Tribunal shall have jurisdiction under this Chapter in respect of the following crimes: (a) Crimes against Peace; (b) Crimes against Humanity; (c) Genocide; (d) War Crimes.

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(a) The Tribunal may, in its absolute discretion, give an advisory opinion on any question of International Law of substantial public importance at the request of the War Crimes Commission, the Legal Team, the parties before the Tribunal or any one or more of the amici curiae appointed by the Tribunal in any particular case.

(b)

(c) If the Tribunal agrees to comply with such a request, the Registrar shall forthwith give notice of the request for an advisory opinion to all concerned who shall be entitled to make written submissions   before the Tribunal.

(d)

(e) In the exercise of its advisory functions the Tribunal shall further be guided by the provisions of the present Charter and Rules of Procedure and Evidence of the Kuala Lumpur War Crimes Tribunal which apply in contentious cases to the extent to which they recognize them to be applicable.

Questions upon which the advisory opinion of the Tribunal is asked shall be laid before the Tribunal by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied, where necessary, by all documents likely to throw light upon the question.

Unless the request for an advisory opinion is from the Commission or the Legal Team, requests in other cases shall only be made through a firm of Solicitors.


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Article 8 Crimes against Peace 1.

A crime against peace refers to planning, preparation, initiation, or waging of wars of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. Article 9 Crimes against Humanity

For the purpose of this Charter, “crime against humanity� means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Tribunal; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health; (l) Imposition of unjust sanctions and blockade to impoverish civilian populations.


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Article 10 Genocide For the purpose of this Charter, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) (b) (c) (d) (e)

Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group. Article 11 War Crimes

1.

The Tribunal shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2.

For the purpose of this Charter, “war crimes” means: (a)

Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i)

Wilful killing;

(ii)

Torture or inhuman treatment, including biological experiments;

(iii)

Wilfully causing great suffering, or serious injury to body or health;


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(iv)

Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v)

Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi)

Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii)

Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages. (b)

Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts: (i)

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii)

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflicts;

(iv)

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and


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severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v)

Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi)

Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii)

Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix)

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x)

Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause


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death to or seriously endanger the health of such person or persons; (xi)

Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii)

Declaring that no quarters will be given;

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv)

Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

(xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx)

Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflicts;


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(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities;  (xxvii) Destruction, pillage   and spoilation of the economies of countries under military occupation. (c)

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:


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(d)

(i)

Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii)

Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii)

Taking of hostages;

(iv)

The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i)

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)

Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iii)

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflicts;

(iv)

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments,


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hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v)

Pillaging a town or place, even when taken by assault;

(vi)

Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions;

(vii)

Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix)

Killing or wounding treacherously a combatant adversary;

(x)

Declaring that no quarters will be given;

(xi)

Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii)

Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.


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Article 12 Legal Team 1.

The Legal Team shall initially comprise of five Malaysian lawyers.

2.

The Commission shall increase the membership of the Legal Team by appointing additional lawyers from Malaysia and abroad, from time to time as and when it deems it necessary to do so.

3.

The Legal Team shall as soon as practicable establish 3 distinct divisions, each responsible for discharging the functions and duties assigned to it by the Commission, namely

4.

(a)

The Prosecution Division (prosecuting offenders before the Tribunal);

(b)

The Defence Division (providing legal aid to accused, if such aid is requested);

(c)

The Victims Unit Division (looking after the interest of victims & their dependants during the course of the proceedings before the Tribunal).

The Prosecutor of the Prosecution Division may investigate, collect and examine evidence and request the presence of and question persons being investigated, victims and expert and other witnesses before or during the Trial. Article 13 The Secretariat

1.

There shall be established a Secretariat to assist the Kuala Lumpur Foundation to Criminalise War Incorporated and the other Institutions of the Foundation in all their administrative functions. The Secretariat shall comprise a Secretary-General, the Deputy Secretary-General and such other officers and staff as the Board of Trustees of the Foundation shall determine.


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2.

The Secretary-General shall be the chief administrative officer of the Foundation and all its Institutions. He shall also perform such other functions as are entrusted to him by the Board of Trustees of the Foundation. He shall make an annual report to the Board of Trustees of the Foundation on the work of the Foundation and all its Institutions.

3.

The Secretary-General shall provide for the Secretariat’s own procedure in the discharge of its functions and duties. Article 14 Financial matters

The Board of Trustees of the Foundation shall determine the allowances and disbursements payable to its members, witnesses and all other officials, staff and persons involved in the work of the Foundation and all its other Institutions. Article 15 Miscellaneous provisions The Board of Trustees of the Foundation may, from time to time, make provisions for any other matter that it deems necessary to enable it to carry out its work more effectively in furtherance of the objectives spelt out in this Charter.


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PART 2 RULES OF PROCEDURE AND EVIDENCE OF THE TRIBUNAL Chapter I GENERAL Article 1 The Tribunal shall at their first meeting establish and adopt rules of procedure and evidence in accordance with the minimum standards and guidelines established by these Rules. The Tribunal shall be mindful of their function as a tribunal of conscience and shall thereby act on fair, transparent and just procedure. Article 2 The minimum standards of fair procedure and evidence shall comprise the following: (a)

Every person against whom a petition or charge is made shall be presumed innocent until his culpability is established on the evidence;

(b)

The proceedings shall be in public unless circumstances arise which require the proceedings to be continued in private on the basis of sound reasons ( e.g. to protect the identity and evidence of victims of sexual offences, or otherwise to guarantee the personal safety of the witness );

(c)

Every person charged must be informed of the exact charge(s) against him which must be expressed clearly and exactly and supported by sufficient and relevant grounds and facts;

(d)

Every person charged must be accorded a right of hearing (whether oral or written) and the fullest opportunity to answer the charge(s) must be accorded;


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(e)

Every person charged must be informed of his right to legal representation of his choice;

(f)

The proceedings shall at all times respect human dignity and shall only act on the basis of proven facts established on relevant evidence after full and fair proceedings;

(g)

A full and complete documentary record of the proceedings shall be kept and made available to every person charged and the public;

(h)

The Tribunal shall provide a full reasoned decision based on the relevant evidence found to be admissible and fair;

(i)

The burden of proof shall be on the basis of beyond reasonable doubt;

(j)

The onus of proof shall be on the prosecuting team throughout the proceedings;

(k)

In the event of a lacuna in the rules, the Tribunal shall adopt rules which comply with international standards of fairness and justice.

Chapter II THE CHARGE Article 3 The Charge shall state the offence with which the person is charged before the Tribunal. Article 4 The offence must be positively and precisely stated so that the person charged may know with certainty the charged offence.


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Article 5 The Charge shall contain sufficient particulars as to time and place of the alleged offence(s) and the person(s) against whom the offence(s) was or were committed as are reasonably sufficient to give the accused notice and a reasonable and fair opportunity to respond.

Chapter III SERVICE OF THE CHARGE & TRIAL DATES Article 6 (a)

The Registrar of the Tribunal shall cause to be served on the accused a copy of the Charge or Charges before the commencement of any proceedings of the tribunal.

(b)

If the Charge involves a current head of state/government or a former head of state/government, service of a copy thereof to the relevant Embassy or High Commission shall suffice and the accused is deemed to have been served.

 (c)

In all other cases, such as military commanders (serving or retired) and government officials, service of the charge shall be deemed effected if sent to the last known office of the accused. Article 7

Each tribunal member shall be supplied a copy of the Charge. Article 8 Upon receipt of the Charge, the tribunal shall decide on the dates for the commencement of proceedings which shall not be less than two months from the date of filing of the Charges with the Registrar of the tribunal.


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Chapter IV ORAL & DOCUMENTARY EVIDENCE Article 9 The evidence of witnesses shall preferably be in the form of a written testimony/affidavit with exhibits of the relevant documentary and photographic evidence. Article 10 The evidence of witnesses shall be by way of Witness Statements in the form of an affidavit. The witnesses are required to file Witness Statements and such statements shall be read by the witnesses at the trial. The filing of such witness statements shall not preclude a witness from making further oral testimony at the trial if circumstances necessitate such additional evidence. Article 11 (a)

The accused person shall also file witness statements prior to the commencement of proceedings of the tribunal.

(b) Public documents which are records of sovereign authorities, of public officers, legislative, judicial, executive, municipal and military, of official bodies, Courts and  Tribunals of any country and of  an International Organization, shall be accepted as documentary   evidence, inclusive of electronic records of such  documents.The Tribunal shall presume unless the  contrary is proved that the electronic record has not been altered.


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Chapter V MODE OF PROCEEDINGS Article 12 The Tribunal proceedings shall commence with a reading of the Charge which shall be explained to the accused in person if he is present. Article 13 If the accused is not personally present before the Tribunal, the Tribunal shall inquire into the circumstances of his absence. The Tribunal shall be aided by the Prosecution Team in this regard, and will need to be satisfied on the evidence that the accused has been served with the charge or otherwise been sufficiently informed of the commencement of the proceedings. Article 14 The reason(s) for the absence of the accused shall be duly recorded and shall form part of the official record of the proceedings. Article 15 If the Tribunal is satisfied that the accused is for any reason unwilling to appear in person or unwilling to appoint counsel to represent him before the Tribunal, the Tribunal shall appoint one or more amici curiae from the Defence Division of the Legal Team to assist the Tribunal by presenting an unbiased assessment of the charge and evidence against accused. Article 16 The amicus curiae appointed shall be a person independent of the Prosecuting Team.


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Article 17 The Prosecution Team shall begin by making an opening address by outlining the case against the accused. Article 18 After the conclusion of the opening address, the Tribunal shall receive the oral testimony of the witnesses or their respective written testimony where filed and made available. Oral evidence through video conference may be permitted by the Tribunal. Article 19 The conduct of examination of witnesses shall be adversarial. Article 20 The accused or his counsel shall have the right to cross-examine each witness. Article 21 Where the accused is not present or no counsel has been appointed by him, the amicus curiae shall cross-examine the witness, followed by a re-examination of the witness by the Prosecution Team. Article 22 Members of the Tribunal retain the power to examine any of the witnesses at any time in the interest of justice. Article 23 The examination of witnesses shall be subject to rules of relevancy and admissibility, and as a general rule, primary evidence shall be introduced.


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Article 24 Secondary and hearsay evidence may be admissible in the interest of justice in particular circumstances but the Tribunal shall accord secondary and hearsay evidence less cogency and shall decide finally on the total weight of the evidence with due regard being given to primary evidence. Article 25 The accused or his counsel or the amicus curiae, as the case may be, may submit no case to answer at the conclusion of the case of the Prosecution Team. Article 26 In the event the Tribunal decides that there is a prima facie against the accused, the Tribunal shall proceed to receive evidence from the accused or his witnesses where present and available, or in absence to hear submissions from the amicus curiae. Article 27 The Prosecution Team shall thereafter close the case, followed by a reply from the accused or his counsel, where present or available. Article 28 In the absence of the accused or his counsel, the amicus curiae shall assist the Tribunal by replying to the Prosecution Team.

Chapter VI VERDICT Article 29 The Tribunal must be satisfied beyond reasonable doubt that the charge has been proven, and shall provide a full and reasoned written verdict after adjournment and deliberation.


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Article 30 Where the tribunal is not satisfied that the case has not been proven against the accused beyond reasonable doubt, it may recommend, subject to the principles of double jeopardy, that further investigations be carried out by the Commission if the tribunal is of the unanimous view that this course of action will serve the ends of justice and conscience. Article 31 As a tribunal of conscience, a verdict of the Tribunal shall be merely declaratory of the law. The Tribunal may recommend to the Commission to submit its finding to the International Criminal Court or any other international organizations for further action.

Chapter VII REGISTER OF WAR CRIMINALS Article 32 Where a charge has been proven before the Tribunal, the Tribunal shall recommend to the Commission that the name of the person adjudged guilty of war crimes be included in the Commission’s Register of War Criminals and publicized accordingly.

IN FAITH WHEREOF the Trustees of the Kuala Lumpur Foundation to Criminalise War Incorporated have signed the present Charter of the Kuala Lumpur War Crimes Commission and the Rules of Procedure and Evidence of the Tribunal. DONE at the city of Kuala Lumpur the sixth day of June, two thousand and eight.


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Advisory Opinion 31 October 2009  
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