International Human Rights Network of Academies and Scholarly Societies Proceedings - Symposium and Seventh Biennial Meeting, London, May 18-20, 2005 (2006) / Chapter Skim
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Torture and Cruel, Inhuman or Degrading Treatment or Punishment
Torture and Cruel, Inhuman or Degrading Treatment or Punishment
Pages 39-60
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From page 39... ...
Bush on the 7th of February 2002 -- the Presidential Directive on Humane Treatment of Al Qaeda and Taliban detainees. In it, he says, our values as a nation, values that we share with many nations of the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment.
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From page 40... ...
My second preambular point relates to the interrogation practices that have been the subject of national and international concern. It would not be appropriate of me, as a member of the Human Rights Committee under the International Covenant on Civil and Political Rights, to address contested matters of fact.
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From page 41... ...
Since Al Qaeda is not a contracting party, anybody having anything to do with Al Qaeda is automatically not protected insofar as the Geneva Conventions protect people in international armed conflict -- the Taliban too, for that matter, but they are history, and I won't spend time on them, given the limited amount of time I have. What about common Article 3 of the Geneva Conventions, which applies in noninternational armed conflict?
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From page 42... ...
Those techniques involved being spread-eagled against a wall on tips of toes for up to 24 hours, forced by physical force if necessary, subjected to loud noise, deprived of food and drink, subjected to hooding, and being kept awake. Those treatments for up to 24 hours, in combination, were found to be a violation of Article 3 of the European Convention on Human Rights, as constituting inhuman and degrading treatment.
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From page 43... ...
What's the problem? The problem is, of course, that the torture prohibition in the torture convention, which is the full title of the torture convention -- the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment -- is incorporated, but the bit on cruel and inhuman or degrading treatment or punishment (1)
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From page 44... ...
It took a while for Abu Ghraib and all the legalities to emerge. But there was obviously the fear that things like this might happen, and regrettably that fear has turned out not to be ill founded.
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From page 45... ...
I describe these as War of Terror and War on Terror, and I think the distinction is quite important. Secondly, I would like to briefly mention the relation of torture and cruel, degrading, and inhuman treatment and punishment in the torture convention, to which Sir Nigel referred, and, thirdly, the problem of outsourcing of terror practices through the practices of rendition.
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From page 46... ...
We could start by appreciating the great insight of philosopher Alain Badiou, a French thinker, who describes the situation we are in, and the crimes in New York and the battles that followed, as constituting a "disjunctive synthesis of two Nihilisms." Nihilisms that self-destruct the norms and values that we thought existed earlier. The violence that is ushered in by the two terror wars operates over rights, international law, human rights law, and humanitarian law in many ways.
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From page 47... ...
When we talk of torture and histories of torture and the efforts to fight it on a human rights platform, we surely know that here are available to us the defining laws that constitute elements of proposing a definition of State terrorism. It is most astonishing that this is a one-sided focus on non-state terrorism, or what I call practices of violence by nomadic, insurgent multitudes.
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From page 48... ...
Some people argue that torture and the application of torture in the worst situation of the ticking bomb should be considered as acts of political disobedience. In other words, a detaining authority or an FBI official, or whatever, may be compared with Mahatma Gandhi or Martin Luther King, or Nelson Mandela -- that a person who applied torture does so as an act of civil disobedience, against the laws prohibiting torture.
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From page 49... ...
Comments Rodley Just because international human rights and humanitarian laws aren't always respected, doesn't mean to say that international humanitarian law doesn't define a whole load of obligations. If those obligations were respected, I think this is Kofi Annan's point, then there wouldn't be state terrorism.
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From page 50... ...
At Guantanamo Bay and Abu Ghraib and elsewhere, our luck has run out. Jonathan and I have been doing a little bit of research into the question of what doctors did, and it is pretty difficult to find out because there are orders for people not to talk.
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From page 51... ...
Now, take a step back and look at a new doctrine that developed shortly after 9/11. Major General Jeffrey Miller, who has not been disciplined and according to some of our sources is about to be promoted, had a vision for Guantanamo and Abu Ghraib that was actually quite different from what traditional interrogation doctrine called for.
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From page 52... ...
From sources that we interviewed on background, we know that Abu Ghraib had an interrogation site that basically had a central hallway with three interrogation rooms on each side, and you could stand in the central hallway and look at these rooms through a one-way mirror. One of the things that happened in the BSCT teams was psychological profiling for the purpose of developing individual interrogation plans.
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From page 53... ...
As a result of perusal of a large number of documents obtained by the American Civil Liberties Union in Freedom of Information Act requests, we do know that there were interrogation plans designed by military intelligence tiger teams (the name of the interrogation teams) in consultation with medical personnel.
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From page 54... ...
We've already heard a great deal about the scope of applications and some of the arguments of the administration regarding the scope of application of the laws of war and international human rights law, so I don't want to repeat the arguments about scope, but I just want to draw your attention to the standards themselves for a minute. First, if one looks at the Geneva Conventions -- let me make one scope point in parentheses: Secretary of Defense Donald Rumsfeld acknowledged that the Geneva Conventions applied to detainees in Iraq, irrespective of their arguments about Guantanamo Bay.
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From page 55... ...
This is interesting, because civilian contractors, such as CACI International, were involved in the interrogations at Abu Ghraib. It is important to note that there are some violations of the Geneva Conventions, such as withholding a meal from someone for hours, which would simply be a violation, but other forms of conduct rise to the level of grave breaches.
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From page 56... ...
Let's look briefly at Principle 2 from the U.N. Principles of Medical Ethics: "It is a gross contravention of medical ethics as well as an offense under applicable international instruments for health professionals, particularly physicians, to engage actively or passively in acts which constitute participation in, complicity in, incitement to, or attempts to commit torture or other cruel, inhuman, or degrading treatment or punishment." We know what participation is, or complicity, but these are plainly terms of art.
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From page 57... ...
Does or should this permit a psychiatrist or other health professional to put his or her skills to use on behalf of the interrogation mission, subject only to international laws and constraints, or are there other additional ethical constraints involved? Footnote here -- notice the murkiness with respect to health professionals who are not physicians -- should a psychologist be constrained by the same ethics norms as a physician, or is a psychologist freer with respect to these ethics norms?
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From page 58... ...
It considers larger social purposes but it begs the larger question of whether interrogation and counter resistance practices at issue are desirable. Where we are ending up is with an appeal for a move toward an ethics of clinical role conflict -- an ethics that acknowledges the problem of conflicting clinical loyalties or dual loyalties and the reality that medicine serves other social purposes, pervasively, but still holds as primary, medicine's obligation to individual patients.
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From page 59... ...
I am a human rights lawyer in London. You raised an interesting point about semantics.
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From page 60... ...
What would happen if there were an attempt to rewrite the Torture Convention or the Geneva Conventions? The United States would have a very influential role in making sure that, if anything, things went backward rather than forward to the extent they wanted them to go backward rather than forward.
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