The absolute ban on torture, a cornerstone of the international human rights edifice, is under attack. The principle we once believed to be unassailable – the inherent right to physical integrity and dignity of the person – is becoming a casualty of the so-called war on terror.
So warned Louise Arbour, the UN High Commissioner for Human Rights. Meanwhile, photographs, news reports and official investigations into abuses at Abu Ghraib, Bagram Air Base and Guantanamo Bay suggest a policy of systematic torture on the part of the US government that extends all the way up the chain of command.
The 1984 Torture Convention prohibits ”any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.“ The Bush administration favors its own standard, whereby the pain caused ”must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or even death.“ Under this definition, many methods of what is generally understood as ”torture“ would be allowed, including ”waterboarding“ – where a person is made to believe they will drown.
Senator John McCain, who was subjected to waterboarding in North Vietnam, describes it as ”torture, very exquisite torture.“ Last autumn, McCain sponsored draft legislation that stipulated ”No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.“ The bill was opposed by Vice President Dick Cheney, who, by invoking the threat of a presidential veto, negotiated important loopholes. As adopted, the legislation fails to prohibit torture contracted out to other countries. It also provides legal immunity for those committing acts of torture that were ”officially authorized and determined to be lawful at the time that they were conducted.“
Moreover, when Bush signed McCain’s bill into law, he declared it would be interpreted within the context of the president’s powers to protect national security – in other words, that any interrogation method could still be used, if the White House deemed it necessary. This outright rejection of Congressional intent is breathtaking. As Sidney Blumenthal observed, it reflects ”a basic ideology of absolute power.“
At the same time, the CIA has engaged in a practice called ”extraordinary rendition“ whereby suspects are transferred in violation of the Torture Convention either to the intelligence services of countries notorious for torture or to clandestine prisons located outside the United States. The secret prisons have obvious parallels – the Soviet Gulag and the Latin American ”disappearances“ – and they contravene the prohibition on arbitrary detention in international human rights law.
Some countries, including Britain and Canada, have obtained assurances of good treatment from the United States before handing over suspects. This practice has been criticized by the UN Special Rapporteur on Torture on the basis that such ”assurances are unreliable and ineffective“ – not least because they ”are sought usually from states where the practice of torture is systematic.“
The same two countries have supported the Bush administration’s illegal behavior in other ways. Both Britain and Canada have allowed CIA aircraft to use their airports and airspace on numerous occasions, including – it would seem – for rendition purposes. British agents have also allegedly conducted interrogations under threat of torture, while using information obtained by other governments through torture. Craig Murray, a former British ambassador to Uzbekistan, has posted classified documents on his website that show British officials deciding that they can use information obtained through torture for intelligence purposes. The documents are all the more troubling because Uzbekistan is notorious for using especially horrific methods of torture, such as dipping detainees in boiling water.
A basic tenant of criminal law – reaffirmed in the Torture Convention – holds that those who aid or abet a crime are criminals themselves. Our behavior also has a negative impact on the way we are perceived, and how we perceive ourselves. In an important sense, if our democratic governments have been complicit in torture, we – as citizens and voters – are torturers too.
Michael Byers is the Canada Research Chair in Global Politics and International Law at the University of British Columbia.