Eleven years ago, the United Nations designated June 26 as the International Day in Support of Victims of Torture. Then-Secretary General Kofi Annan explained, "This is a day on which we pay our respects to those who have endured the unimaginable. This is an occasion for the world to speak up against the unspeakable. It is long overdue that a day be dedicated to remembering and supporting the many victims and survivors of torture around the world." He added, "June 26 is not a date chosen at random. It was the day, 11 years ago, that the Convention against Torture came into force. It was also the day, 53 years ago, that the United Nations Charter was signed - the first international instrument to embody obligations for Member States to promote and encourage respect for human rights."
As Navi Pillay, the UN High Commissioner for Human Rights, explained in a speech reproduced in today's Daily Star, Lebanon, "The prohibition of torture is one of the most absolute to be found anywhere in international law. Article 2 of the Convention against Torture is unequivocal: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.'"
She continued: "A total of 146 states have ratified the Convention against Torture (CAT) in the 25 years since it was adopted in 1984 - in other words, three-quarters of the world's states." However, as she also explained, "Many states that have ratified CAT continue to practice torture, some of them daily. Others, which do not practice it themselves, enable it to happen by sending people at risk back to states where they know torture is carried out. This, too, is clearly prohibited by CAT (Article 3)," which states that "No State Party shall expel, return (‘refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."
The High Commissioner proceeded to explain how "The acts of terrorism that shook the world on September 11, 2001 had a devastating impact on the fight to eliminate torture," as "Some states that had previously been careful not to practice or condone torture became less scrupulous. State lawyers began to look for ingenious ways to get round CAT, or stretch its boundaries. The Guantánamo and Abu Ghraib prisons, in particular, became high-profile symbols of this regression, and new terms such as ‘water-boarding' and ‘rendition' entered the public discourse, as human rights lawyers and advocates looked on in dismay."
According to Pillay, the worst excesses of the Bush years may now be coming to an end. "I believe we are finally starting to turn the page on this extremely unfortunate chapter of recent history," she explained, "with counter-terrorism measures starting to move back in to line with international human rights standards." However, she added that "Leadership is required to end this grotesque practice. In January, I welcomed the fact that Barack Obama's very first actions as the new US president included decisions to close Guantánamo and ban methods of interrogation, such as water-boarding, which amount to torture or otherwise contravene international law. He has set an example of what a leader can do, in terms of policy and practice, to uphold the total prohibition on torture."
"But," she continued, "there is still much to do before the Guantánamo chapter is truly brought to a close. Its remaining inmates must either be tried before a court of law - like any other suspected criminal - or set free. Those at risk of torture or other ill-treatment in their countries of origin must be given a new home, where they can start to build a new life, in the US or elsewhere. I welcome the fact that in recent weeks a number of countries have agreed to take in a few people in this position, and urge others to follow suit, including first and foremost the United States itself."
Addressing President Obama's proposal to push for new legislation endorsing "preventive detention" - in other words, continuing to imprison people without charge or trial, on the basis that there is insufficient evidence to try them, or that the evidence is tainted by the use of torture - the High Commissioner was rightly indignant. "There should be no half-measures, or new creative ways to treat people as criminals when they have not been found guilty of any crime," she said. "Guantánamo showed that torture and unlawful forms of detention can all too easily creep back into practice during times of stress, and there is still a long way to go before the moral high ground lost since September 11 can be fully reclaimed."
Today, sadly, our celebrity-obsessed world is unlikely to pay much attention to the International Day in Support of the Victims of Torture, as the death of Michael Jackson dominates headlines around the world, and the public's tendency to let the allure of celebrity erase concerns about the moral failings of stars, and what the cult of celebrity does to people, will be on full display instead.
Nevertheless, Navi Pillay is to be thanked for raising the issue of America's moral leadership on this important day, and for congratulating Barack Obama on making a promising start, but warning that much more needs to be done. As well as highlighting the terrifying notion of endorsing "preventive detention," she was, I believe, correct in stating that "first and foremost" the Obama administration should take responsibility for the injustices perpetrated by its predecessor, and should accept cleared prisoners into the United States.
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Moreover, as recent events have shown, President Obama also needs to open up the prison at Bagram airbase in Afghanistan to some form of outside scrutiny - and, in a limited number of cases, to the US courts - and, as a recent court case revealed, he also needs to speed up plans to release prisoners, and would do well to accompany this with bold statements renouncing the failures of the Bush administration's "War on Terror" detention policies.
On Bagram, the Obama administration has already lost credibility by refusing to accept, as Judge John D. Bates ruled three months ago, that foreign prisoners - seized outside Afghanistan and rendered to Bagram, where they have been held for up to seven years - have the same legal rights as the prisoners in Guantánamo. As Judge Bates explained in his ruling, the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extend to the foreign prisoners in Bagram, because "the detainees themselves as well as the rationale for detention are essentially the same."
This is undoubtedly true, and it is, indeed, little more than an administrative accident that the foreign prisoners at Bagram - perhaps around 30 of the total population of 650 - did not end up in Guantánamo. However, although Judge Bates did not extend rights to Afghans held in a war zone - who should be treated as prisoners of war, in accordance with the Geneva Conventions - President Obama needs to make clear that this is, in fact, what is happening, and that the BBC's recent report about the abuse suffered by several dozen Afghan prisoners, who were held at Bagram between 2002 and 2008, refers not to current conditions at the prison, but to the years when former defense secretary Donald Rumsfeld sanctioned the use of torture by the US military. Without some form of transparency, the fear is that the abusive regime initiated by Rumsfeld is still in existence, and that Obama's fine talk of banning torture and reinstating is nothing more than hot air.
On Guantánamo, Obama needs to move fast if he is to preserve any credibility, because the administration's most recent court defeat - in the case of Abdul Rahim al-Ginco, a Syrian prisoner - is demonstrably humiliating. On Monday, Judge Richard Leon (an appointee of George W. Bush) demolished the government's case, and was clearly incredulous that the government thought it could establish that al-Ginco had some sort of ongoing relationship with al-Qaeda and/or the Taliban when, having spent three weeks in a guest house and training camp in 2000, he was then suspected of spying, tortured by al-Qaeda for three months, and imprisoned by the Taliban for a further 18 months, until his "liberation" by US forces, and his transfer to Guantánamo.
Al-Ginco's case is just the latest in a series of court humiliations which also revealed that, essentially, Eric Holder's Justice Department was doing nothing more than attempting to defend the Bush administration's idiotic detention policies on a case-by-case basis, pursuing worthless and unjust cases in which its only evidence, as Judge Gladys Kessler pointed out in another recent ruling, in the case of a Yemeni, Alla Ali Bin Ali Ahmed, consisted of "unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a ‘mosaic' of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions."
These are not the only issues that President Obama needs to address urgently. He also needs to think hard about whether it is feasible to make a stand against torture while refusing to investigate those who authorized its use during the Bush years, and also needs to reflect on the significance of his opposition to a lawsuit brought by the ACLU against Jeppesen Dataplan, Inc., a Boeing subsidiary that acted as the CIA's travel agent for torture.
To highlight this issue, I'll shortly be cross-posting an interview with the wife of Abou Elkassim Britel, one of five prisoners represented by the ACLU in the Jeppesen case, who is currently languishing in a Moroccan jail, having been initially picked up in Pakistan and rendered to Morocco by the CIA.
The interview is part of a two-week project, "Accountability for Torture," that was initiated by the ACLU in the run-up to the International Day in Support of Victims of Torture. This has featured a podcast with Glenn Greenwald and Philippe Sands, and articles by several experts on torture including Dr. Stephen Soldz, who wrote about the American Psychological Association's collusion in the use of torture. Later today I'll also be posting my own contribution, an analysis of how the Bush administration's torture regime included not only the waterboarding and other "enhanced interrogation techniques" used on so-called "high-value detainees" and the reverse-engineered torture techniques taught in US military schools, which were implemented throughout the "War on Terror," in Afghanistan, Iraq and Guantánamo, but also the brutal force-feeding of hunger-striking prisoners in Guantánamo, which continues to this day.