Celermajer, Danielle; Saul, Ben (update) --- "Are we entering a post human rights era? Are there good enough reasons to torture?" [2007] HRightsDef 8; (2007) 16(1) Human Rights Defender 19

• Are we entering a post human rights era? Are there good enough reasons to torture?
• Update

Are we entering a post human rights era? Are there good enough reasons to torture?

Danielle Celermajer

This article was originally printed in the HRD, Vol 14 issue 1 2005. It is followed by an update written for this issue by Ben Saul.

Is it just to torture a small number of individuals who are suspected of holding information that could lead to the prevention of a terrorist attack on the United States? This was the question I asked my students to contemplate just a year after 9/11 and just a few kilometres uptown from the site of the attacks in New York City. At the time, none of us had any idea how relevant and alive this question would become in debates about public policy and human rights over the next two years.

When it came to grading the papers, I was shocked by the high proportion of students who argued that it would be just to torture a few, in order to achieve the higher good of saving thousands of American lives. The qualifier – American lives – is not my embroidery but was often built into their argumentation. The fact that they were answering this question in the context of a course on theories of justice is of course very relevant to the way they answered the question. Had I asked if the proposed torture would violate human rights, their answers would (or should) have been very different – demanding an absolute prohibition on torture under all circumstances. This difference, however, and the unique intervention in international public policy that the human rights framework represents, are dissolving under the legal quills of the US administration, and the violent acts that have gained their stamp of authority and legitimacy.

In fact, at the very time that my students were preparing their papers, Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty were drafting their own memo to the General Counsel for Department of Defence, William J. Haynes II, explicitly arguing that no international laws—including human rights law and the laws of war—applied to Al Qaeda and Taliban Detainees (Memorandum, 2002).

We now know that all throughout this period, that is, during 2003 and until the exposure of the Abu Ghraib photos in late April 2004, men and women detained by US forces or their allies in service of the War against Terror had been tortured and subjected to cruel and inhuman treatment (CIT) at the US bases in Afghanistan, Iraq and Guantanamo Bay. The US public first saw the Abu Ghraib photos on US television on 28 April 2004, but already in July 2003 the International Commission of the Red Cross had issued a report detailing allegations of extensive prisoner abuse in Iraq. The treatment, as documented by the Red Cross, Human Rights Watch and the report that the US administration itself commissioned after it learned of the abuses (the Taguba Report), included such acts as:

• hooding combined with beating for several hours over a period of two to four consecutive days;
• being paraded naked outside cells in front of other prisoners and guards, sometimes hooded or with women’s underwear over the head;
• being forced to remain for prolonged periods in stress positions such as squatting or standing with or without the arms lifted.

These, and a list of about 40 other techniques, were classified according to severity into three categories and assessed by the US administration in terms of legality and public policy. When, in December 2002, Defence Secretary Rumsfeld approved the use of so-called category I and II techniques and left open the possible use of category III (the most vicious) subject to specific approval, the technique of having prisoners stand in stress positions for up to 4 hours particularly caught his eye. ‘I stand for 8-10 hours a day’, he added in a handwritten note at the bottom of the memo, ‘Why is standing limited to 4 hours?’

The Yoo and Delahunty memo was amongst the first of a series of memoranda and reports bouncing between players at the upper echelons of the US administration, all similarly arguing that torture or at least CIT were indeed legally permissible. They provided Byzantine and legally suspect technical analyses of international and domestic law to justify the basic ‘You have our go-ahead, boys (and girls)’ position.

So, for example, they argue that because the Taliban and Al Qaeda did not fit squarely into any of the categories of combatants explicitly mentioned by the Geneva Conventions, their members could not claim the safeguards that humanitarian law afforded prisoners of war, including protection against torture. In regards to human rights law, they argue that a combination of US reservations on, and understandings of international treaties exempted the USA and hence US personnel from the apparently unambiguous prohibitions on torture set out in treaties ratified by the US, including the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). And, in a move that would surely shake anyone sentimental about the rule of law, they argue that the President has the unrestrained constitutional power to treat enemy combatants as he sees fit. Should Congress try to regulate the President’s ability to detain and interrogate enemy combatants, they advised, it would be violating the Constitution, because it vests Commander-in-Chief authority (including, they deduce, authority over interrogation) solely in the President. They then advise that if subordinates were to exercise this authority it would be best if they did so under explicit presidential directives (and we can presume that the President would not have been holding Iraqis on a leash himself).

This puts an interesting angle on the question of command responsibility. Historically, political leaders go to great lengths to remove

Human Rights Defender : 19 Post Human Rights Era

themselves from the chain of command in cases of systematic human rights violations, and indeed, the characterization of the Abu Ghraib guards as ‘bad apples’ conforms to this pattern. Yet, here the advice would unambiguously place the President at the head of that chain.

The direction of the causal relationship between the official memos drafted in Washington and what was actually being done in Iraq, Cuba and Afghanistan is something on which we might reflect. Was it the case that the administration knew about the torture and was seeking to provide legal justification should a member of the US forces get hauled before a Court? Alternatively, were the memos symptomatic of the attitude emanating from Washington and being transmitted to the prison cells where they were translated into beatings, sexual humiliation and, as we now know, the death of several prisoners?

The latter seems the more likely explanation given what we know about some of the more explicit and colourful instructions coming from the administration. During the interrogation of John Walker Lindh, for example, the office of Defence Secretary Rumsfeld instructed military intelligence officers to ‘”take the gloves off” in interrogating him’ (Serrano 2004). This single instruction was generalized in a memo issued by a US Army intelligence officer in 2003, which stated: ‘The gloves are coming off, gentlemen, regarding these detainees. Col. Boltz has made it clear that we want these individuals broken. Casualties are mounting and we need to start gathering info to help protect our fellow soldiers from any further attacks.’ (Confidential Memo, 2003). The memo also appealed for suggestions on how to extract information from prisoners in Iraq by 17 August 2003.

Even if the causal relationship moved in the other direction, that is torture on the ground came first and Washington was then faced with the question of torture’s legitimacy, it then becomes the responsibility of the administration to explicitly signal its condemnation, drawing on domestic and international law to bolster this position. Whichever way one reads the narrative, the administration bears significant responsibility for the ongoing torture of prisoners, especially given that it had been given credible evidence of violations by at least mid 2003. Nevertheless, the prospect that the US government was actually sourcing, rather than simply pragmatically accommodating human rights violations represents a much more far-reaching threat.

From the point of view of the people all around the world who look to the human rights framework as a final barricade against the ‘pragmatic’ and often despotic laws and policies of their own governments, the gravest fallout of this story is its impact on that framework itself. It is no secret that the US has long been complicit in human rights violations (including systematic torture) in its support of authoritarian regimes globally. However, this studied, legally-based, decimation of what is undeniably one of the most fundamental human rights norms is far more damaging to the authority and legitimacy of the international human rights regime itself.

Effectively, the message is that human rights may be trumped by pragmatic considerations. In this case, the pragmatic justification is the need to obtain critical intelligence for a war, a justification that is ennobled by describing this war as a campaign to protect innocent people against terror and popularised with nationalist, ideological and religious washes: protecting the American way of life, freedom, and fighting Islamic fundamentalism. Abstract the substance of the justification, however, and the structure of the argument remains: the human rights of some people have to be sacrificed under certain conditions.

This is, as I noted, precisely what some of my students argued. However, they were drawing on utilitarian theories of justice and not on human rights, and the difference between those approaches is crucial in understanding what is unique and important about the human rights framework. As soon as one tries to reframe human rights arguments in utilitarian terms (sacrifice the few for the greater good), the human rights idea, as a distinct approach to regulating public action, has been lost. The core of the human rights approach is that it sets out absolute rights for all human beings under all circumstances. Certainly, human rights treaties contemplate the need to balance rights and take note of context. Even then, however, there are certain non-derogable rights: rights that cannot be violated under any circumstances whatsoever. Torture is always on that list, perhaps even constituting the archetypal non-derogable right. Even killing is permissible, in war or in self-defence, but torture is ruled out under all circumstances for everyone.

That is why, for example, when ‘other’ governments have justified torturing ‘dissidents’ by pointing to the supposedly precarious state of the ‘nation’, people draw on human rights arguments rather than, say, arguments from ethics or justice. Certainly, there are conceptions of justice that insist on categorical rules, but justice, as a concept, has been understood as permitting some derogation. In fact, as a number of my students argued, there are theories of justice that demand that one sacrifice the good of the few in order to achieve some good for the many. This is not the case for the human rights canon, which establishes a universal, categorical refusal to permit certain acts no matter what their commission might achieve. This legally entrenched notion of a non-derogable right is one of the key marks distinguishing human rights from other available approaches. As soon as one allows that certain circumstances may constitute legitimate defences for those who commit torture, one is no longer speaking the language of human rights.

And this is precisely what the memos do when they argue that torture, which on face value looks like a human rights violation, may in fact not violate human rights law, if one can show that there was a good reason (a justification or excuse) for committing the specific acts. The two main defences they moot and find particularly appealing in this context are necessity and self-defence.

To explain how necessity comes into play in assessing the legality of an otherwise unlawful act, the March 2003 Working Group Report quotes a (utilitarian) legal commentary: ‘the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.’ The report finds the necessity defence particularly relevant here given the link between the objective of torturing prisoners in the War Against Terror and public policy. Though this remains unsaid, the authors clearly share the view of some of my students that the protection of American lives is a higher value than the protection of individuals from torture, or the protection of the universally affirmed norm of condemning torture itself.

When it comes to contemplate the application of self-defence, the report stretches the concept beyond recognition and distorts its usual legal meaning. Self-defence is rigorously circumscribed by the principle of imminence, which means that the attack is occurring in the present or is about to occur. But this Report argues that the ‘self’ in self-defence may encompass something as vague and remote as the nation as a whole and the attack against which one might justifiably and legally defend oneself includes one that might occur at some unspecified time in the future.

These moves to insert utilitarian justifications and national interest into the interpretation of human rights are not simply interpretive deviations within human rights jurisprudence, but actually eviscerate the framework. The prohibition of torture is the prohibition of torture committed for some other purpose. This fact is built into the CAT itself, which defines torture as the intentional infliction of severe pain or suffering ‘for such purposes of obtaining from him or a third person information or a confession’. The report actually takes note of this and indeed acknowledges that it could be argued that this definition was intended to imply that ‘the good of obtaining information - no matter what the circumstances - could not justify an act of torture’. Its rejoinder, however, is simply to point out that when Congress enacted criminal legislation to implement the CAT, it removed the purpose element in the definition of torture. The fact that this definitional slide deprives the law of its specific intent and undercuts the meaning of human rights is not remarked upon.

Similarly, the argument that torture could be justified in defence of the nation, or in the pursuit of public policy objectives dissolves the human and universal qualifiers in the concept of universal human rights. What distinguished the Universal Declaration of Human Rights and its subsequent treaties from previous bodies of (domestic) law was that this body of law specified rights that adhere to all people irrespective of race, gender, ethnicity or any other status and irrespective of the policy objectives or national interests of any state. The moment one links a person’s access to human rights with national difference or national interest, one has left the stadium of universal human rights and entered the State Department.

In the US today, this is precisely what is happening. President Bush has just nominated John R. Bolton, currently the Under Secretary of State for arms control and international security affairs, to represent the US at the United Nations. Bolton, as any student of human rights law knows, is one of the foremost opponents of international human rights law and the author of a number of highly invective articles attacking its legitimacy as law and urging the US to opt out of any type of multilateral regulation. By the time this comes to press, we should know if Bolton’s nomination has been approved. Irrespective of the final outcome, however, the fact that the President of the most powerful state in the world has chosen an Ambassador to the UN who is publicly committed to the decimation of human rights as a constraining force on the actions of governments is a highly sobering thought.

At the end of the 20th century we celebrated 50 years of an international human rights regime and looked forward to its reach widening to benefit all people in all parts of the world. At the beginning of the 21st century we will have to act mindfully and strategically to ensure that the post human rights era in the US does not become the global norm.

Dr Danielle Celermajer is the Director of the Bachelor of Global Studies, University of Sydney. She is a former Fellow at the Center for the Study of Human Rights, Columbia University and former director of policy in the indigenous rights policy unit of the Australian Human Rights and Equal Opportunity Commission.

References Application of Treaties and Laws to Al Qaeda and Taliban Detainees, 1 September 2002, available at www.msnbc.msn.com/id/5025040/site/newsweek/ Confidential Memo, issued by US Army intelligence officer in Summer 2003 and reported in ‘Memo Appealed for Ways to Break Iraqi Detainees’, Washington Post Foreign Service, 23 August 2004, at A12 Serrano, Richard A, ‘Prison Interrogators’ Gloves Came Off Before Abu Ghraib,’ Los Angeles Times, 9 June 2004

Update

The greater the distance from 9/11, the less it seems we are entering a post human rights era. Danielle Celermajer’s timely warning against the tempting moral slide towards torture is symptomatic of why that era has not come about. Enough people in the United States and elsewhere have found the idea of human rights precious enough to be worth defending, even against the overwhelming power of the last great superpower. The Bush administration’s arrogant assertion of legal exceptionalism, exemplified in its lurch towards torturing terrorists, has spectacularly backfired. Images from Abu Ghraib and Guantanamo Bay fuelled hatred of – and resistance to – American policies everywhere and demoralized America’s armed forces. Professional US military lawyers, schooled in the dignity-preserving laws of war, expressed their disgust at the contrived efforts to legalize torture in interrogation. British courts have thrown out evidence tainted by torture in the war on terror. America’s allies have retreated from their traditions of unequivocal support of the US. America’s moral authority has been crippled and its global reputation is looking decidedly tattered. President Bush’s popularity is at an all time low, in part because hitting the panic button to torture terrorists exacted a heavy political price. Ultimately, the reaction against American torture resulted in President Bush publicly reaffirming America’s commitment to the prohibition on torture, and the US Congress explicitly legislating to forbid it. After a long struggle, John Bolton was not appointed US ambassador to the United Nations, due to fierce resistance in Congress. Of course, not all has come good – some US torturers received light justice; European governments were complicit in CIA ghost flights; and conditions at Guantanamo Bay may well be inhuman or degrading. But the power of the idea of human rights has been something to behold – and something even the most powerful cannot afford to push aside.

Dr Ben Saul is Senior Lecturer and Coordinator, Master of International Law Program at the Faculty of Law at the University of Sydney. Ben specialises in public international law, particularly anti-terrorism law, humanitarian law, international criminal law and human rights law. He has recently published Defining Terrorism in International Law (OUP, 2006).