Trumping the Politics of Torture
The refusal of the United States to adhere to global norms on torture is undermining the foundations of the human rights movement. Despite public admission that the US and its Western allies used torture during the so-called War on Terror, they have never been held accountable. This issue has been exacerbated by the recent election of Donald Trump, who campaigned on a platform of “torture works”. Trump’s support for such practices threatens to legitimise their use worldwide. In the face of obstinacy, the international community needs to stand tall and universally apply the standards of international human rights law.
International human rights law enshrines the prohibition of torture in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The CAT asserts that the prohibition is absolute: “no exceptional circumstances whatsoever (…) may be invoked as a justification”. States Parties to the CAT must ensure that torture is punishable under criminal law, and the crime is covered under universal jurisdiction. Consequently, any state can and should prosecute a torturer within their jurisdiction, regardless of where the act was committed.
The prohibition of torture is widely considered to constitute a peremptory norm, giving it a special status that permits no derogation. The prohibition of torture is absolute and binding, regardless of a state’s signatory status to international treaties or conventions on the subject. Fundamentally, this absolute prohibition gives torture a unique status in the global human rights lexicon. If we cannot legally or morally uphold the prohibition, a founding bedrock of international human rights law may fall by the wayside.
It is now widely known that the US used torture during the so-called Global War on Terror. Leaked photos of prisoner abuse at Abu Ghraib prison in 2004 marked the first confirmation that the USA had resorted to torture. “Enhanced interrogation techniques” included sexual humiliation, sleep deprivation, and the denigration of Islamic values. Similarly, the 2014 release of the Senate Intelligence Committee Report on CIA Torture confirms the extent of Western participation in torture. The report details that at least 39 detainees were subjected to waterboarding, sleep-deprivation, slapping, and “rectal feeding”. Yet to date, only 11 “bad apples”, the low-level Military Police officers depicted in the photographs, have been prosecuted, in addition to one whistle-blower, John Kiriakou.
The Senate Intelligence Report affirms that “the CIA’s Detention and Interrogation Program damaged the United States’ standing in the world”. But despite signing the CAT, and the prohibition of torture’s status as a peremptory norm with universal jurisdiction, all efforts to prosecute US officials involved in torture have failed. Given its hegemonic status in world affairs, other states have been reluctant to agitate the US. This has led the UN Committee Against Torture to urge all states to better enforce universal jurisdiction over the prohibition of torture.
The impunity of the USA is having lasting consequences. In December 2014, United Nations Special Rapporteur on torture Juan E. Méndez warned that the carefully crafted global consensus on human rights was being tested by American impunity, leading many states to question, “if the US tortures, why can’t we do it?” The election of a US President that advocates torture suggests that public opinion on its use is shifting from moral indignation to acceptance and support. In a Republican Primary debate Trump declared he would “bring back waterboarding (…) and a whole lot worse”. Waterboarding has been widely recognised as torture, both by the UN Committee Against Torture in 2006, and by the European Court of Human Rights (ECHR), who legally defined torture in Ireland v The UK 1977.
Nevertheless, there is cause for optimism. Efforts to hold accountable European states involved in CIA torture through refoulement and extraordinary rendition have been more successful. Under Article 46 of the European Convention on Human Rights, judgements by the ECHR are binding on States Parties to the European Convention, whilst torture is prohibited under Article 3. Consequently, the ECHR has succeeded in holding member states accountable for complicity in torture. In 2014, the ECHR held Poland responsible for the torture and unlawful rendition of Al Nashiri and Abu Zubaydah, ordering reparations of €100,000 be paid to both men. Similarly, in El-Masri v Macedonia, the ECHR held Macedonia responsible for its role in torture and ill treatment. These cases have set precedent in ECHR case law, engendering optimism toward the pending outcomes of Abu Zubaydah v Lithuania, and Al Nashiri v Romania.
Perhaps the greatest cause for optimism comes from the International Criminal Court (ICC) decision to establish preliminary investigations into Crimes Against Humanity and War Crimes perpetrated by the USA in Afghanistan, as well as War Crimes committed by the UK in Iraq. The USA has not ratified the Rome Statute, eschewing jurisdiction of the International Criminal Court. Nevertheless, as Afghanistan is a signatory state, the ICC has the authority to prosecute acts within its subject-matter jurisdiction if they are committed on the territory of States Parties. The Prosecutor of the ICC also enjoys enough political independence and prosecutorial authority to investigate cases based on the gravity of crimes committed under the Court’s jurisdiction. Owing to this, the USA, the UK, Russia, and Israel are all under preliminary investigation by the ICC for the first time in history.
Following Trump’s election, it is now imperative that States committing serious human rights violations be held universally accountable, regardless of their hegemonic power or status. We can no longer afford to let Western states lead by poor example. Fortunately, international courts like the ICC and the ECHR stand willing to enforce these values where national interests have wavered. Should the ICC prosecute the USA, it is unlikely that any US citizen would be physically remanded, owing to provisions in the 2002 American Service-Members’ Protection Act. Nevertheless, it is up to the international community to reaffirm its commitment to these values, abide by the rulings of international institutions, and enforce universal jurisdiction. After all, the human rights movement is ours to uphold.
Picture: Tim Shaw, Casting a Dark Democracy. 2008.
Photography: Chris Keenan. 2014.
 Jenna Johnson, “Donald Trump on Waterboarding: ‘Torture Works’,” Washington Post, February 17, 2016, https://www.washingtonpost.com/news/post-politics/wp/2016/02/17/donald-trump-on-waterboarding-torture-works/.
 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, 10 December 1984, 85.
 “Universal Jurisdiction,” International Justice Resource Center, February 7, 2010, http://www.ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/.
 Pal Ahluwalia, “Delivering Freedom: Australia’s Witnessing of Abu Ghraib,” Journal of Visual Culture 5, no. 1 (2006): 93-96.
 Senate Select Committee on Intelligence, “The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program”, The United States Senate, December 3, 2014, https://fas.org/irp/congress/2014_rpt/ssci-rdi.pdf.
 “Abu Ghraib, 10 Years On”, The New Yorker, April 22, 2014, https://www.nytimes.com/2014/04/23/opinion/abu-ghraib-10-years-later.html?_r=0
 Peter Van Buren, “Whistle-Blowing US Torture,” Salon, September 11, 2012, http://www.salon.com/2012/09/11/whistle_blowing_us_torture/.
 Senate Select Committee on Intelligence, “The Senate Intelligence Committee Report”.
 Laura Pitter, Joseph Saunders, and Leslie Haskell, No More Excuses: A Roadmap to Justice for CIA Torture (New York: Human Rights Watch, 2015).
 UN Committee against Torture, “Consideration of reports submitted by States parties under article 19 of the Convention: Concluding observations of the Committee against Torture, Canada,” 48th Session, June 25, 2012, Geneva, CAT/C/CAN/CO/6.
 “If the US tortures, why can’t we do it?”, Office of the High Commissioner for Human Rights, December 11, 2014, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15406&LangID=E
 Tom McCarthy, “Bernie Sanders on SNL Upstages Republican Debate – as It Happened’” The Guardian, February 7, 2016, https://www.theguardian.com/us-news/live/2016/feb/06/republican-debate-new-hampshire-primary-2016-election.
 European Court of Human Rights, Ireland v. The United Kingdom, no. 5310/71, Judgment of 18 January 1978.
 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.
 European Court of Human Rights, Al Nashiri v. Poland, no. 28761/11, Judgment of 24 July 2014; European Court of Human Rights, Husayn (Abu Zubaydah) v. Poland, no. 7511/13, Judgment of 24 July 2014.
 European Court of Human Rights, El-Masri v. The Former Yugoslav Republic of Macedonia, no. 39630/09, Judgement of 13 December 2012.
 European Court of Human Rights, Abu Zubaydah v. Lithuania, no. 46454/11. Judgement pending.
 European Court of Human Rights, Al Nashiri v. Romania.
 The International Criminal Court, Report on Preliminary Examination Activities, 14 November 2016, https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
 UN General Assembly, Rome Statute of the International Criminal Court, last amended 2010, 17 July 1998, ISBN No. 92-9227-227-6.
 William Schabas, “Prosecutorial Discretion vs. Judicial Activism at the International Criminal Court,” Journal of International Criminal Justice 6, no. 4 (2008): 731-761.
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