The UN special rapporteur on torture, Manfred Nowak, last week called for his own country, Austria, and other European countries to take in Guantánamo detainees as refugees. In fact, Nowak has been campaigning to have the Guantánamo Bay prison camp shut down for years now and his proposal that EU countries should accept detainees as refugees is nothing new. Nonetheless, it was for some reason deemed newsworthy by the Associated Press, which devoted an article to Nowak’s demands under the title “UN envoy: Nations must take Guantanamo inmates.”
The article refers to an interview that Nowak gave to the Austrian public radio broadcaster ORF [German link]. In the interview, Nowak insisted that it was a misconception to regard the detainees in general as dangerous. “Very, very many” of them, he said, were simply “in the wrong place at the wrong time” when they were taken prisoner in Afghanistan or Pakistan during the first stages of the war in Afghanistan.
One particularly well-informed commentator who does not agree with Nowak’s assessment happens to be none other than Khalid Sheikh Mohammed, the former Osama bin Laden lieutenant who is widely reputed to have been the “mastermind” of the 9/11 plot. In a Combatant Status Review Board hearing held at Guantánamo Bay on March 10, 2007 (transcript here), Mohammed –- or “KSM,” as he is commonly known -– willingly embraced his own designation as “enemy combatant.” Using terms remarkably similar to those employed by the UN official, however, he contested the appropriateness of this designation for many of his fellow detainees and pleaded for their release. “…[W]hen we say we are enemy combatant, that right. We are,” KSM said. “But I’m asking you again to be fair with many detainees which are not enemy combatant. Because many of them have been unjustly arrested. Many, not one or two or three.”
Unlike Nowak, however, KSM did not say that the Guantánamo detainees in question had simply been “in the wrong place at the wrong time.” On the contrary, he explicitly states that they had come to Afghanistan for the purpose of fighting against American forces.
When America invaded Afghanistan, they just arrive in Afghanistan cause the[y] hear there enemy. They don’t know what it means al-Qaeda or Osama bin Laden or Taliban. They don’t care about these things. They heard they were enemy in Afghanistan. They just arrived. As they heard first time Russian invade Afghanistan. … [T]hey don’t know what is going on. They just hear they are fighting and they help Muslim in Afghanistan.
In other words, KSM denies that the “unjustly” detained inmates are members of al-Qaeda or the Taliban. He does not deny that they were in Afghanistan to fight. As opposed to the longstanding al-Qaeda or Taliban members, these were recent volunteers who came to Afghanistan in order to fulfill their religious duty to join the jihad against the American invaders. KSM also suggests that some unaffiliated Afghanis and Pakistanis joined the battle on the spur of the moment.
As KSM himself points out, his argument for the release of these detainees is, in effect, a matter of “definition” — and a very subtle definition it is, worthy of an experienced trial lawyer. But from the perspective of the American army against which they were fighting and according to all rational criteria these people were quite obviously just what the Bush administration designated them to be — namely, “enemy combatants.”
It should be noted, moreover, that the very conditions that inspired them to fight in Afghanistan in the first place continue to exist today. American and other foreign troops are still there. By releasing them now to ostensibly “friendly” countries, the American army will clearly risk seeing them return to the battlefield — either in Afghanistan or on other fronts in the global jihad like Iraq. Even if this should not come to pass, were the American government to back down from its earlier determination and endorse Nowak’s claim that the detainees had never been combatants, this would be to court the risk that released detainees will sue the American government for illegal imprisonment. Although the AP did not see fit to include this detail in its report, Nowak also touched upon this point in his ORF interview. “I assume that most of these detainees will in the future be awarded damages by American courts for the many years that they were illegally held [in Guantánamo],” he said.
In order to underscore the allegedly “illegal” circumstances of their detention, Nowak threw out an obvious red herring: he insisted that the “great majority” of the detainees “certainly had nothing to do with the September 11 attacks.” But whoever said that they did have “something to do” with the attacks? The legitimacy of the war in Afghanistan as such is clearly connected to the attacks, but the American government has obviously not claimed that every combatant captured in the war zone was also a member of the 9/11 plot.
That a supposed expert in international law like Nowak would so egregiously misrepresent the legal arguments for the holding of the Guantánamo detainees raises serious questions about his motivations. This is not the first time that there has been reason to wonder about them. In a highly-publicized UN report that was released in February 2006, Nowak accused the U.S. of practicing torture at Guantánamo. As I have shown in my essay “The Road to Condemning Guantánamo”, Nowak employed an absurdly inflated concept of “torture” in order to arrive at this conclusion.
At the time, Nowak cited his former professor, the late Austrian jurist Felix Ermacora, as the “inspiration” for his finding. Ermacora was a leading member of post-WWII revisionist circles in Austria and Germany. Among other things, Ermacora tacitly condoned the German subjugation of Czechoslovakia following the 1938 Munich Accords, expressed admiration for the work of the British revisionist historian and Holocaust denier David Irving, and accused the Allied powers of crimes equivalent to those committed by Nazi Germany. He even went so far as to affirm that “ethnic Germans” had been the victims of “genocide.” (For the precise details, see “The Road to Condemning Guantánamo”.)
One of Ermacora’s closest intellectual collaborators was the former Nazi legal theorist Theodor Veiter. In his 1938 volume on “National Autonomy” [Nationale Autonomie], Veiter called for the exclusion of Jews from the lives of “other nations.” Veiter was only a “former” Nazi legal theorist, incidentally, in the sense that after the war his party membership, needless to say, became obsolete and he henceforth refrained from indulging in anti-Semitic outbursts in his publications. Ermacora, however, had no compunction about citing even Veiter’s openly anti-Semitic Nazi-era output in his own “scholarly” writings. A 1988 Festschrift for Felix Ermacora contains a contribution from Veiter on “Ethnic Group Rights.” One of the co-editors of the volume: Manfred Nowak.
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