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American exceptionalism – the crime of torture

The United States has been a leading advocate of international law and justice.

U.S. standing in the global arena is predicated not simply on military or economic superiority, though it possesses both, but on its commitment to law and a set of ideals governing the behaviour of nations. Historically, the United States was also a strong voice behind a growing internationalism, particularly as a response to conflict and instability. However, this changed after 9/11, the invasion of Iraq, and subsequent revelations of human rights abuses committed by the U.S. government. The recently released U.S. Senate Select Committee’s “Torture Report” puts to rest any remaining doubt that crimes of torture were committed by the CIA.

The Report is sobering. The full Committee study totals more than 6,700 pages and represents four years of work by the Committee ending in 2012, during which it reviewed more than six million pages of CIA materials covering the post 9/11 Detention and Interrogation Program. (1) It is by far the most comprehensive report on U.S. intelligence gathering ever undertaken. Since much of the document remains classified, we still do not know the full nature of the CIA’s actions. Nevertheless, even the 500-page redacted executive summary clearly reveals a set of brutal and immoral practices that go far beyond anything previously made public.

The Report’s conclusion that enhanced interrogation techniques used by the CIA constituted torture cannot be denied. Equally damaging perhaps is the revelation that “enhanced interrogation techniques” were ineffective and did not lead to accurate, objective intelligence.

Another disturbing finding is that the CIA lied about the extent and intensity of interrogation techniques used. The CIA reported that initially it used “an open, non-threatening approach”, beginning with the “least coercive technique possible.” (2) This was simply not true. The CIA employed brutal techniques for days and weeks at a time. These included sleep deprivation, physical abuse, mock burials, water boarding, and “rectal hydration”.

Moreover, the CIA became the guardian of all interrogation related information and viewed other parts of the U.S. government as hostile to its work. To maintain secrecy, it sent misinformation to the public, Congress, and the White House.

It is important to emphasize that the CIA was not the only U.S. government agency wilfully promoting, or excusing, torture as a method of U.S. policy. The Report does a disservice by suggesting that the Justice Department’s Office of Legal Counsel (OLC) was simply misled by the CIA when drafting the now notorious “torture memos”. Even if one assumes that the DOJ reached faulty conclusions based on CIA deception, “ultimately, the fault lies with the legal counsel for not doing any investigation and blindly accepting what they were told.” (3) They were not independent, impartial memos. (4) The lawyers who drafted the memos should be held responsible for suggesting that CIA officials could avoid prosecution if torture resulted in “specific, actionable intelligence” that saved lives.

The key question, however, is whether those who perpetuated criminal offences, and have never been held accountable, will actually be brought to justice. It is unlikely, at least in the United States.

For its part, the U.S. Justice Department launched faint-hearted investigations into post 9/11 CIA torture. Shockingly, the Justice Department stated that it found no new information in the report that would merit reopening an investigation. Plainly, the Department refuses to prosecute anyone for the crime of torture. The White House has taken a similar view.

That the U.S. government can even take such a position is a clear example of American “exceptionalism”, which has no merit in international law.

Former UN High Commissioner for Human Rights, and the recipient of the 2010 Stockholm Human Rights Award, Navi Pillay has rightfully stated that:

“Torture is an unequivocal crime … Neither national security nor the fight against terrorism, the threat of war, or any public emergency can justify its use. All States are obliged to investigate and prosecute allegations of torture and cruel, inhuman or degrading treatment, and they must ensure by every means that such practices are prevented.” (5)

The prohibition of torture is found in a number of international human rights and humanitarian treaties and applies even in times of war and terrorism. (6) It is also considered a fundamental principle of customary international law and jus cogens. This means that the prohibition of torture is binding on all states, even if they have not ratified the relevant treaties.

It is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that sets the fundamental obligation for all states to prosecute torture. Article 2(1) of CAT states that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” The prohibition of torture in CAT is absolute: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” (7)

There is absolutely no legal defence that can be proffered by the United States that would exempt the country from bringing to justice those who have perpetrated the crime of torture. The U.S. has a clear obligation under international law to prosecute any person who commits torture. Yet, as stated earlier, there is no realistic chance of prosecution in the United States.

The question then arises about whether there is a mechanism, short of domestic prosecutions, that would ensure accountability for CIA agents and other govern­ment officials who committed torture. In my opinion, there is one possible avenue: namely, the principle of universal jurisdiction. Under this principle, other states could arrest and prosecute anyone implicated in torture as set forth in the Torture Report.

The principle of universal jurisdiction holds that every country has a responsibility to bring to justice the perpetrators of grave crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims. It allows domestic courts to try and punish perpetrators of the most heinous crimes, including torture. If a state is unable to initiate a prosecution then it must extradite the person to a state or international court that can prosecute.

However, the principle of universal jurisdiction is losing force and credibility internationally. There is growing evidence that states are retreating from the original and more aggressive interpretation of this principle. A more conditional form of universal jurisdiction, whereby states adopt substantive and procedural legislative changes that make it considerably more difficult to bring third parties to justice, has taken its place. This trend needs to be reversed.

International pressure should remain on the United States to ensure that those officials who committed or authorized torture are brought to justice. And all countries should ensure that their own domestic legislation is robust enough to bring to justice those who commit these most heinous crimes, regardless of their status or location.

1. Senate Select Committee on Intelligence, “Committee study of the Central Intelligence Agency’s Detention and Interrogation Program,” (2014) p. 9 http://www.intelligence.senate.gov/study2014/sscistudy1.pdf, at 5.

2. Id.

3. Amel Ahmed, “Did CIA interrogation methods break the law?” (AlJazeera, 9 Dec 2014), http://america.aljazeera.com/articles/2014/12/9/the-cia-torture-reportalegalexplainer.html

4. Id, as stated by Wells Dixon, an attorney at the Center for Constitutional Rights.

5. JURIST UN rights officials call for end to torture 2014 available at http://jurist.org/paperchase/2014/06/un-marks-international-day-in-support-of-victims-of-torture.php accessed 11 December 2014.

6. Article 5 of the Universal Declaration of Human Rights (1948), Article 7 and 10 of the International Covenant on Civil and Political Rights (1966), Article 3 of the European Convention on Human Rights (1950), Article 5 of the American Convention on Human Rights (1978), UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (1987), Inter-American Convention to Prevent and Punish Torture (1985).

7. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of 1984, Art 2(2).

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