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The United Nations Convention against Torture is believed to be one of the most comprehensive international treaties dealing with torture and other cruel, or inhuman and degrading treatments. The international community through a series of treaties and conventions such as the Universal Declaration of Human Rights of 1948 and the International Convention on Civil and Political Rights of 1966, clearly condemns the use of torture as a means of extracting information from a suspect. Thus, the collective efforts to deter the use of force and to criminalize acts of torture triggered the adoption of Convention against Torture in December 1984 and its effective entry into force in June 1987 (CAT 1987). Article 2 (2) of the convention clearly limits the extent to which individuals can stretch when extracting information from a suspect. It clearly states that under 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. Hence, Convention against Torture was designed to be part of a broader efforts to secure the universal respect for human rights based on the recognition that equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. According to Michael (2009), the United States became a signatory state to Convention against Torture in April 1988 and later ratified the treaty in December 1994, subject to certain reservations, declarations and understandings. Following the September 11 attack on the World Trade Centre that left almost 3000 Americans dead, the United States’ position on convention against torture took a dramatic U-turn in the immediate aftermath of the terrorist attack on World Trade Centre. American more than ever before demonstrated their willing to trade their freedoms for security and accountability. The Bush administration challenged internationally recognized standards of Convention against Torture by implementing clandestine policies of rendition and enhanced interrogation in its overseas detention centers in Guantanamo Bay in Cuba and Abu-Ghraib in Iraq. The Central Intelligence Agency together with the Federal Bureau of Investigation allegedly detained and questioned a significant number of Muslims without necessarily bringing formal charges against them. (Kutlu, 2020). This paper shall discuss in the following paragraphs how the United States’ enhanced interrogation techniques stroke at the very core of anti-torture norms and how such policies helped to embolden other rogue states to noncompliance of international treaties.
War on Terror
In the immediate aftermath of the collapse of the World Trade Centre, the Bush administration made it clear that the conflict with Islamic terrorists should be viewed as war on America. "They had declared war on us and I made up my mind at that moment that we were going to war… our war on terror begins with al-Qaeda but it does not end there… It will not end until every terrorist group of global reach has been found, stopped and defeated" (Goldsmith, 2007, p.103). With such conviction and determination, America invaded Iraq in its attempt to root out terrorists from their hideouts. A country that we now know never attacked America in the first place. Suspects suffered from indefinite detention in its overseas detention centers in Guantanamo and Abu Ghraib. Not only did such moves strip suspects off their rights to presumption of innocence until proven guilty, but it also violated article 6(3) of Convention against torture which warrants states parties to ensure that detainees under foreign state custody are immediately assisted in communicating with the nearest appropriate representatives of their states of origin.
To justify its actions, the United States in a by-bee memorandum of August 2002 (DOJ, 2002), advanced a very narrow definition of torture that was clearly contrary to the language of law and common sense. According to the memo, in order for pain to amount to torture, it must be equivalent in intensity to the pain accompanying serious physical injuries such as organ failure, impairment of bodily functions, or even death. It was so narrowly defined and reinterpreted such that it prohibited only most extreme acts of torture. This meant that acts of inhuman and degrading treatment (prohibited by international Law and Convention against Torture) could not be criminalized unless it was deemed as causing severe physical pain or suffering or prolonged mental harm to a suspect. But even at that, uncertainties about the legal limits of torture still exist. For example, how should pain be measured? How does one draw the line between severe (prohibited) pain and non-severe (non-prohibited) pain? What does mental pain mean and how much amount of it can be imposed before it produces prolonged mental harm?
Another controversial justification relied on constitutional position claiming that the president has the authority to supersede international laws in an event where the national security of the United States is at stake - and as such, the president could authorize torture if deemed necessary to defend America’s national security (Goldsmith, 2007). The United States further violated article 3 (1) of Convention against Torture which prohibits states from expelling or returning people to other states where there exist substantial grounds that the person may be subjected to torture. Maher Arar a Syrian national with Canadian citizenship status suspected of links with terrorism was arrested at JFK airport in New York, while waiting for a connecting flight to Canada. After conducting a thorough investigation on Arar, he was extradited to Syria even as grounds for potential torture existed. His request to have him sent to Canada instead of Syria was ignored (John Garcia, 2009).
Rather than call it torture, the Bush administration coined its treatment of suspects around words that appeared less concerning. The administration described its interrogation technique as ‘enhanced interrogation’’ which effectively included waterboarding, blind folding, walling and stripping naked high value suspects who proved to be very uncooperative in the process of obtaining information. This was the case of Abu Zubaydah who allegedly proved very incorporative with conventional forms of interrogation, following his capture in Pakistan in 2002 (James, 2007). In late 2019, Abu Zubaydah released graphic pictures to illustrate his experience and treatment at Guantanamo Bay, in which he described how he was often forced into contorted positions, stripped naked or lightly clothed, confined to tight boxes with his arms shackled above his head (CNN, 2019). These programs which were conducted under the authority of presidential order involved the kidnapping of suspects, their disappearance, extrajudicial detention and torture of persons suspected of terrorism and or having links with al-Qaeda. According to Sigh (2013), rendition, detention and enhanced interrogation boosted active cooperation of over forty foreign governments, including Hong Kong which permitted over flights, stopovers, refueling, kidnapping, hosting of black sites. These acts were in direct contrast with Article 11 of Convention against Torture which urges state parties to keep a systematic review of interrogation rules, methods and custody of any persons subjected to any form of arrest, imprisonment or detention by ensuring that such persons are prevented from any form of torture.
The impact of United States torture policy on Convention Against torture
The United States unwillingness to grant full access to Guantanamo Bay was itself an indication that detainees were subjected to inhumane treatment which could not stand public view. According a report by Human Rights Watch (2009), it took up to four leading Human rights and civil liberty organizations to pressure then President Obama to grant full access to Guantanamo in 2009 which somehow still limited them from accessing the actual detention halls .This refusal to grant access to detention centers strengthened the position of other states including those with unquestionable records of Human Rights violation. This was the case with the Sudanese President Omar al-Bashir in 2006 who cited the United States behavior when justifying his refusal to allow United Nations resolution for peace keepers in Darfur (The Guardian, 2006). States such as North Korea, China, Iran and Cuba used the United States transgression as a deflection from criticisms of their own violations by challenging certain preconditions for membership to Human Rights Council. The logic was simple, how could a state whose troops mistreat detainees at Guantanamo bay and Abu Ghraib be leading the campaign for accountability from other states?
The United states have been widely criticized for its handling of suspects linked to al-Qaeda and prisoners in Guantanamo Bay. This has over the years, triggered calls from within America to shut down oversea detention centers. Morgan Philips (2021), published an article with Fox News detailing how more than two dozen Senate Democrats addressed a letter to President Joe Biden demanding him to shut down the military prison in Guantanamo Bay. They acknowledged the effects that the facility has on the United States reputation and its ability to advance Human Rights laws on the international stage. Some of the key concerns included the prison’s representation and symbolism of lawlessness that continues to harm the national security of America by serving as a propaganda tool for America’s enemies which effectively hinders efforts to counter terrorism with America’s allies around the world.
There is no doubt that the presence of powerful states such as the United States of America with its iconic position on the international political stage, poses a challenge to the effective implementation of certain international obligations and treaties. Ironically, despite maintaining its troops in the Middle East for over twenty years, America with all its sophisticated military capabilities and intelligence, is yet to declare victory over Islamic terrorism. This leaves one to ponder whether the war was necessary or even justified in the first place. The former President, Donald Trump repeatedly criticized the Bush administration for engaging America into what he described as ‘endless wars’ and promised to pull out American troops from the Middle East. Whether fortunately or unfortunately, his defeat in the 2020 presidential elections dealt a big blow to the said master plan. Which therefore meant that if America was to follow through on his promise, it would be President Joe Biden to execute the plan. Regrettably, Joe Biden’s botched and miscalculated withdrawal of American troops from Afghanistan in mid-2021 could be nothing short of public humiliation of America and its allies on international stage, as the world watched how American troops desperately flew its citizens and other afghan allies from Kabul with other desperate Afghans hanging on, and falling off America’s military airplanes. Even as America managed to violate the core principles of Convention against Torture in pursuit of terrorist, its twenty year war in the Middle East could be summarized in two words– public humiliation and shameful defeat. If there are any lesson to draw from the Afghanistan war, the first would be that, guns have never and will never win a war of ideology and secondly, a united minority, under certain circumstances would always prevail over a divided majority. Having said this, there is therefore no justification, whatsoever, for subjecting anyone, irrespective of their beliefs, race, gender or culture to any form of cruel, inhumane and degrading treatments for the purpose of scoring cheap or valuable political points.
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- Quote paper
- Divine Mebune Nkwelle (Author), 2021, From Advocate to Adversary. How the 9/11 attack changed the United States position on Convention against Torture, Munich, GRIN Verlag, https://www.grin.com/document/1184804