Torture! What Is It Good For? Absolutely Nothing… Ever.

US Senate Report on CIA Detention Interrogation Program (Wikimedia)

The recent declassification of the US Senate Committee Report on the Central Intelligence Agency’s use of torture on detainees has (rightly) provoked public outcry – both against the use of Enhanced Interrogation Techniques (EITs) that amounted to torture, as well as backlash from the former Bush 43 administration over perceived flaws and misapprehended findings within the report. Those denouncing the report also believe declassification occurred as a result of the politicisation and demonization of the Republican Party, the CIA and the efforts of the US Armed Forces to combat terrorism over the last decade and a half.

However, there is a middle ground here where arguments have been made out by the public and certain government and intelligence actors that surreptitiously suggests that torture may be illegal and ugly, but given the shocking brutality of groups like al-Qaeda and Islamic State may morally and/or ethically warrant a moderate employ of torture (such as waterboarding aka simulated drowning), particularly when it results in actionable intel that ‘saves American lives’. Even more worrisome is the perception that such arguments are both intellectually brave and perfectly reasonable.

Neither are true.

In rejecting another set of ‘Enhanced Interrogation Techniques’, the Israeli Supreme Court in Public Committee Against Torture in Israel v The State of Israel (H.C. 5100/94) stated:

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. […] law infringing upon a suspect’s liberty “befitting the values of the State of Israel,” is enacted for a proper purpose, and to an extent no greater than is required.” (at paragraph 39)

One accepts that we are in the midst of troubling and uncertain times. But in making such acceptance, one must outright reject the notion that somehow criminal acts such as torture are not absolutely internationally prohibited by law. There are few internationally criminal acts that rise to this level, including (but not limited to) genocide, war crimes, and crimes against humanity (wherein torture itself is a modality of the crime).

Furthermore, the notably absent comment from Bush 43 on the outcome of this report is not, as some pundits portray it, a mystery. Even Cheney should consider his public comments carefully. Taking a cue from the Pinochet extradition cases in UK for crimes committed in Chile during his military dictatorship, the absence of any domestic prosecutions for torture may lead to international indictments against the offending administration where it is clear that these acts were part of a systematic and executively-approved mandate. That terrorism provides a contextual narrative behind the impetus for such coercive techniques is both legally and morally bereft of evidential value. It is also a criminal act for which countries are legally required under international law to pursue prosecutions against domestic perpetrators or extradite to another state that is willing to do so (a principle in international law known as aut dedere aut judicare). The international prohibition on torture is both absolute and non-derogable (arguably jus cogens in nature), meaning under no circumstances may it be acceptable as a means of obtaining information – whether or not the information obtained is reliable.

And that is what is most disturbing about this: There is a not-so-tacit permissiveness in the report’s critics, where information gathered under torture is reliable, actionable and can point to intelligence and security successes (particularly in so-called ‘ticking bomb’ scenarios of an imminent security threat), that any country can wash their hands of the moral indignity of using torture is tantamount to criminal hypocrisy of the highest order. Most reasonable individuals are aware of the challenges that such a restrictive policy places before the security services (re-read the Israeli Supreme Court’s comments). Theirs is not by any means an easy profession. However, in defending and securing the future of any state, the best and most reliable source of unrelenting loyalty to that state comes from the unshakable and genuine belief that it is a state worth preserving. All states have moral and ethical issues, but it is those fundamental legal principles of that state that give real meaning to both the moral and legal character of its citizens and its representatives. It is submitted that the adherence to the strict and absolute prohibition on the employment of physical and mental torture is one of those fundamental principles and to abandon such would be an act of irreversible self-harm.

Lastly, sparing some criticism for those involved in the creation of international law: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) definition of torture (Article 1) is ‘purposefully vague’. That is to say, rather than enumerating a list of prohibited acts as torture (which invariably leads to arguments that omitted acts are less than torture and thus acceptable), the definition focuses on (a) the intentional infliction of severe pain or suffering, whether physical or mental, (b) for such purposes as coercively obtaining information or confession from the subject or a third-party, and (c) where such acts were inflicted, instigated, consented to or in acquiescence of a public official or person acting in official capacity. The problem here is that even this definition is open to each state’s interpretation as to what ‘severe pain or suffering’ means (i.e., if moderately painful, it may not be torture). It is here in this darkest of grey areas where the law does not offer the protections that the public may incorrectly assume that it does. That is on us as international lawyers for not having the wherewithal to address the matter more robustly – something for which victims of torture-by-another-name may find unforgivable.

Kenyan President uses Tory human rights plans to defend war crimes charges

This follows thematically from my first blog entry regarding the UK’s threat to withdraw from the ECHR and the Council of Europe. ‘Putting Britain First’ policies that ignore that Britain is part of the international community in order to quell short-sighted, nationalistic and isolationist political minorities threatens to undermine the reputation of the UK as a global role-model for the adherence to the rule of law (including international law to which all countries are bound) and as supposed champions of human rights at home and abroad.

Original Article by @AdamWagner1 of 1 Crown Office Row chambers and ukhumanrightsblog.com – Definitely endorsing you to follow both.

UK Human Rights Blog

Photo credit: Guardian.co.uk Photo credit: Guardian.co.uk

It is easy to forget that our domestic debate over the European Convention on Human Rights might be having an international impact. But the UK is only one of 47 states which is party to the Convention, and the European Court of Human Rights in Strasbourg protects over 800 million people.

This morning, we brought you exclusive interviews with survivors of the Beslan massacre who are rightly worried that if the UK leaves the Convention, or even threatens to leave as the Conservatives did recently, that will affect their fight for justice. In short, Vladimir Putin would have a ready excuse for ignoring any conclusions reached by the Court.

Well, here is another example of the effect which political trash-talking about the ECHR can have. Kenyan President Uhuru Kenyatta is facing war crimes charges in the Hague relating to ethnic violence which erupted after the 2007 elections leaving…

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What is the value of the ‘European’ human rights? If you’re Conservative, apparently absolutely nothing…

UK-EU Blended Button
Yes, I know that’s the EU Flag. The ECHR doesn’t have a flag. You get the point.

Waking up to the dawn of new Conservative Party plans to scrap the European Convention on Human Rights for the UK was both disturbingly incoherent and troubling in implications. Likely a response to the party-political challenge posed by UKIP towards the Tories, it seems that Europe is a source of headache within a party that seems to be schizophrenic in its approach. While espousing the strength and leadership of the UK, Tories – in the same breath – suggest that where the UK must abide by rules it helped bring into existence is antithetical to ‘British democracy’.

Hogwash. But let me tell you why…

International Law: Pacta Sunt Servanda

One of the jus cogens (non-derogable) rules in international law is Pacta Sunt Servanda – all treaties are binding. (This rule can be found in the Vienna Convention on the Law of Treaties Article 26) In essence, where a state signs up to a treaty it is held that the state intends to abide by the terms in good faith. While the VCLT acknowledges principles whereby treaties can be terminated or suspended (Arts 54-64), threatening both the ECHR and the EU to withdraw unless concessions are made after the UK has entered into such obligations is antithetical to the principles that treaties are binding.

What goes beyond the pale is the consistent statements from the Tories that somehow the UK can withdraw from those aspects that it deems unattractive yet continue to reap benefits from such institutions that it publicly (and possibly privately) denounces. On the implications of ECHR, the Tories are suggesting that a concession (or reform in their parlance) will be made allowing the UK to ignore rulings from the Strasbourg Court, effectively only making a court an ‘advisory body’. It is notable that this is not what the European Convention set out (and was agreed upon by the UK). Article 46(1) states: “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

For this ‘reform’ to take place, all signatories (‘High Contracting Parties’) would have to agree to modification of this Article. How could this be? If the ECtHR (the Court) is perceived as advisory only, then can it possibly be that human rights in the UK and elsewhere in Europe truly have a judicial means of enforcement? No, this would amount to a gutting of any teeth that human rights have developed since their inception in the wake of World War Two. Furthermore, in 2013 the ECtHR rendered 916 judgments, with only 13 judgments (1.4% of the total cases) involving the UK. Of those 13 cases, 8 judgments found at least one violation by the UK of a Convention right. It should be remembered as well that ECHR rights apply only between an individual and the state (vertical effect), not between individuals alone (horizontal effect).

Of note to a possible withdrawal from ECHR by the UK, such an action would be incompatible with our membership in the Council of Europe (it is a requirement), and likely to be ineffectual in the EU (given that ECHR rights are incorporated almost verbatim by the EU’s Charter of Fundamental Rights). Isolation of our little island appears to be the policy of the Conservative Party.

So, it appears that the Tories’ approach to ECHR is to declare that because in the case of eight people who’s rights were found to be violated, international protections afforded all 63+ million British citizens should be abandoned, and so few negative consequences under an international treaty are sufficient for the British state to act in a manner inconsistent with its good faith obligations under international law. The caveat that saves the British reputation at this point is that this is not draft legislation, so at present cannot be construed as representing official state policy or law. Once we cross that line however, we may find international reactions to be significant and legion.

Domestic Law: The Human Rights Act 1998 – The UK’s domestic efforts to enforce rights

Further to deriding the ECHR, the Tories have also suggested tearing up the Human Rights Act of 1998 (‘HRA’) which came under the Blair Labour government. This document is vital for domestic enforcement of human rights, and stands as the primary reason for why there are so few interventions from Strasbourg over UK jurisprudence. Without this legislation, the UK courts would be powerless to enforce human rights, meaning that any violations would have to go to Strasbourg, a scenario that would significantly increase the likelihood of ECtHR interventions. However, in the event of UK withdrawal from ECHR as well, this would mean that there would effectively be no human rights in the UK.

Let me repeat that. Tearing up the Human Rights Act and withdrawing from ECHR means that, as a British citizen, you would have NO human rights.

Such a consequence gives me pause.

However, the Tories have suggested that it would be ‘democratically correct’ that the Parliament of the UK should be the ultimate arbiter as to what rights are afforded to its citizens. Cue the sounds of the masses shouting ‘Hurrah’ for British Democracy, politicians being elected ‘to protect democracy’ from the threat of human rights, and the sounds of gavels falling ordering those horrible criminal foreigners being sent home. This would cure all our ails, and the rails of HS2 will be made of gold.

I think not.

Firstly, human rights are a shield, not a sword. My colleagues know that I am pragmatic and realist in my attitude to human rights’ role in the rule of law, but I have never ever suggested that they do not occupy a very important part of the fairness and just nature of our society. Human rights cannot threaten democracy. Human rights are not accomplices after the fact to criminal actions. Human rights are the baseline measure of how a country treats its people. Human rights enhance our ability as citizens to engage with our nation’s democracy with confidence. And most importantly, human rights universally apply to us all.

Where human rights laws have challenged policies on counterterrorism, immigration or welfare, it is those policies that should be reformed, not the human rights that prevent abuse of individuals by the state. Certainly, the operation of human rights do not pose existential threats to any democracy.

Human rights, in reality, typify the ability of minorities to avoid persecutions by a majority – akin to the difference between a real democracy and a dictatorship. These rights should be controversial. They should, from time to time, create a paradox whereby the easy road is made unavailable in dealing with difficult situations. Human rights forces us as a society to address the complexity and consequences of state actions without sacrificing those elements that make a country worth living in in the first place.

The HRA only being passed in 1998 is shocking to me. While certainly not the only means of rights enforcement before that point, most British people must traverse the breadth of the domestic legal order before seeking redress in Strasbourg. Often referred to as a ‘foreign human rights court’, I’d support the idea of moving the seat of the court to somewhere in the UK just to negate such disingenuous statements. But that the seat is external of the UK should compound the tragedy that in even 8 cases, justice could not be meted out here at home.

What is being suggested is that the HRA and ECHR should be replaced with a ‘British Bill of Rights’.

Firstly, how simple a people are we where such pandering could gain traction? Just because a document contains ‘British’ in its title does not translate to superior content. Arguably, the current content of the ECHR is limited in domestic scope by the HRA – not all of its provisions have been given direct effect in British courts. What more would be removed from these minimal rights to make them acceptable to the ranks of the Tory part who are petrified of their UKIP shadow?

Secondly, a ‘Bill of Rights’ already exists in the American constitution (they are the first 10 amendments). Very few of those amendments parallel the current human rights regime in Europe. (The Second Amendment – the right to bear arms – is not a right that I would wish for the UK.) Invoking the name ‘Bill of Rights’ also suggests an enhanced constitutional status of those ‘British rights’. Unfortunately, most citizens in the UK do not realise that such constitutional protections do not exist here. All that is necessary to alter laws that are constitutional in nature is a majority vote in the Commons, a process made that much easier with a majority election win by a single party. Hence the attachment of this human rights review to the desire for a Tory majority in May 2015. This is how the original HRA was passed under a Labour win in 1997. However, HRA incorporated already-existing rights laws from an international treaty and did not seek to ‘re-write’ those human rights. The model of the HRA was taken from the Canadian Charter of Human Rights, part of the Constitution Act of 1982 in Canada. Again, in Canada, under Article 38(1), changes to human rights require (a) resolutions passing in the Senate and the House of the Federal government, and (b) passage in two-thirds of the provincial legislatures where the population of those provinces is more than 50% of the Canadian population. Changing human rights in the Great White North is not a process undertaken lightly.

In the UK, there are no provisions that protect our constitutional laws from being tinkered with by any single political party which gains a majority – disturbing when you consider that in voter turnouts of barely 65% since 2001, a majority in Parliament could result from less than a third of the electorate supporting that party. That such a case may significantly impact legal protections and enforcement of human rights is doubly disturbing.

And that is where the nub of the domestic conversation lies: human rights without a means of enforcement against the government/state are meaningless. They are relegated to the pages of academia, and have no value for the people they are meant to protect. Whatever the Tory iteration of this ‘British Bill of Rights’, it will be borne of political frustration as opposed to any real criticisms of the ECHR regime. And worse, this rewrite is likely to contain less rights with less enforcement where ‘Parliament’ (read ‘Government’) has final say as to whether they have violated your rights. Considering that one of the principles of the rule of law is that no one can sit in judgment of their own case, I heavily suggest that this is what the Tories’ plan for human rights will ultimately endeavour to accomplish. But then again, how can they violate your human rights if they have effectively taken them away from you?

Selling out human rights because the UK state was caught out a handful of times would be laughable if it weren’t so fundamentally frightening. It’s time here in Britain that we stop acting like a petulant toddler refusing to play nicely with others. We need to stop threatening to become international delinquents if we don’t get our way. We should focus on adapting to the changing geopolitical challenges before us, and working within our international legal obligations, as opposed to constantly suggesting that the UK be treated exceptionally from all other nations.  Pining for our history (as is espoused by UKIP) increasingly seems to come at a cost for our future. The empire is dead and buried (as it should be), but our best days may still lie ahead.

It’s time to grow up.