Time to tackle torture - Global Insight Aug/Sept 2016

Ruth Green

Recent polling in America and references by presidential candidates have put the murky issue of torture firmly back on the agenda. A pioneering project being undertaken by Harvard University’s Carr Centre for Human Rights Policy and the IBA is examining the impact of US torture policies on relations with the UK.

In late 2003, a little over two years after the September 11 attacks, deeply concerning reports surfaced that personnel from the US Army and Central Intelligence Agency had committed serious human rights violations against detainees in the Abu Ghraib prison in Iraq.

Alberto Mora, then General Counsel of the US Navy, says it came as a shock to many even at the highest echelons of the Pentagon that the types of enhanced interrogation techniques used at the notorious prison camp at Guantánamo Bay – the very same techniques that were suspended by Defence Secretary Donald Rumsfeld in early 2003 – had been employed elsewhere. ‘Almost all of us thought that represented the end of the story and the abuse had been limited and the problem had been caught and solved,’ he says. ‘But after the Abu Ghraib case exploded in the summer of 2004 and the subsequent investigations and Congressional inquiries took place it became evident that the problem of cruelty and interrogations was not limited to Guantánamo in 2002 and early 2003. In fact this had metastasised well beyond Guantánamo and well beyond the military.’

Through conversations with a number of military personnel, Mora learned more about the collateral impact of these torture policies on military options in the field.

‘We learnt that allied forces did not wish to be associated with aiding and abetting criminal behaviour under British law,’ he says.

‘This disrupted combat operations, disrupted our training and our alliance structure and engendered mistrust in American leadership during the middle of a war and of course damaged political support for the United States. This damaged significantly the accomplishment of US policy objectives in the “war on terror” in ways that had not been foreseen or anticipated when this programme was first initiated.’

In 2015, Mora joined the Carr Centre for Human Rights Policy at Harvard University as a senior fellow and embarked on a three-year project to examine the legal, political, military, foreign policy, human rights, social, and other consequences of these torture and interrogation practices in order to better understand the costs of US policies and what lessons could be learned.

Top foreign policy priority

Working already with US military academy West Point, Mora was looking for partners overseas, particularly in Europe, but wanted to focus initially on the UK. ‘The British for me are important because they are our closest ally on the “war on terror” and their actions and words carry the most weight in both the “war” and in US global military strategy,’
he says. ‘The British lesson on torture in Ireland and elsewhere is also very relevant to helping us understand the American experience in the “war on terror”. We wanted to build a project in the UK to specifically look at the US-UK bilateral relationship to see how it was affected by American torture. In setting up that partnership we considered a number of options, but the IBA seemed the perfect partner to help us look at the critical, bilateral relationship and then conduct the research and write up the analysis.’

Polling in the US indicates that almost 60 per cent of the American public believes the use of torture is appropriate for keeping Americans safer

Alberto Mora
Former General Counsel, US Navy

Mark Ellis, the IBA’s Executive Director, says he jumped at the chance for the Association to take a leading role on such an important piece of research:‘I thought it was an opportunity for the IBA to contribute to this important issue and hopefully help swing the pendulum back in respect to international law against any sense that torture is permissible,’ he says.

Mora, Ellis and Professor Philippe Sands QC, a barrister who specialises in international law at Matrix Chambers in London, are spearheading the year-long joint project, which will assess the impact of the US’ use of torture from 2002–2008 on the US-UK bilateral relationship. They have assembled a steering group of legal and human rights luminaries to oversee the research – Yasmine Ahmed, Director of Rights Watch (UK); Sir Daniel Bethlehem QC, a barrister at Essex Street Chambers and former legal adviser to the UK’s Foreign & Commonwealth Office; Stephen Rapp, the US Ambassador-at-Large for War Crimes; Professor William Schabas, an expert on the law of genocide and international law; UK Conservative MP Rory Stewart, who previously chaired the House of Commons Defence Select Committee; as well as Co-Chairs of the IBA Human Rights Institute, Baroness Helena Kennedy and Hans Corell, the former UN Under-Secretary-General for Legal Affairs; and both the current and a former UN Special Rapporteur on Torture, Juan Méndez and Professor Sir Nigel Rodley.

Sands says it was crucial that the group reflected a wide variety of relevant experience and knowledge to help guide the project’s development. ‘It’s about information and sharing ideas about how to go forward – we wanted it to be a balanced group of people from different political and professional backgrounds,’ he says. ‘I wrote a book about seven years ago called Torture Team: Uncovering War Crimes in the Land of the Freeon the way that lawyers in the George W Bush Administration basically embraced torture. This, I believe, was when the issues of torture came back on the agenda, so this is an issue I care about and I think lawyers can bring a balanced view.’

Yasmine Ahmed, Director of Rights Watch (UK) who has worked as a public international lawyer for the UK and Australian governments and the UN, says the project will provide a much overdue analysis of practices that violate international law. ‘This project provides an incredibly timely and important opportunity to assess the political, legal and security implications of the US government’s use of torture on its bilateral relationships,’ says Ahmed. ‘There has been no such assessment to date and it is crucial that this is done as the use of unlawful methods has very real implications for the way that states can cooperate in national security matters and effectively combat terrorism and other national security threats.’

Hans Corell, who was working at the UN both when 9/11 happened and the Abu Ghraib revelations emerged, believes the project will be instrumental in helping countries avoid such practices in future. ‘When the US Senate received a report that torture had been practised, there was no independent prosecutor to investigate,’ he says. ‘There was no UN monitor, which I would have thought was one of the fundamental features under the rule of law. I think this project signals that things can be done and will help others in other situations know how to proceed and how to stop these types of issues preventing the rule of law. It’s very important that the IBA is involved and I hope something positive will come out if it and these lessons can be influential.’

Juan Méndez, who has served as UN Special Rapporteur on Torture since 2010, agrees the project will be an important step in making the eradication of torture and associated enhanced interrogation techniques a top priority for the US and other policy-makers worldwide. ‘I think it’s very important because in my capacity as the UN Special Rapporteur on Torture I’ve been insisting that states have to live up to several obligations under international law when it comes to torture,’ he says.

‘One of them is investigating and exposing the truth about torture permitted, tolerated or practised by their agents. And so I’ve insisted that this is a separate obligation from the obligation not to use torture, which, in the case of the US, President Obama seems to have been able to curb torture after 2009, but has not explored or investigated the incidents that happened from 2001–2009.’

Méndez of course knows the damaging impact of torture first-hand. As a young human rights lawyer in the 1970s his work representing political prisoners in Argentina saw him arrested by the country’s military dictatorship and he was subjected to torture and administrative detention over the course of an 18-month period.

He believes the project could also help shed light on torture practices and policies implemented by administrations outside of the US and how this has affected political and military relationships. ‘The Abdel Hakim Belhaj case comes to mind where ultimately the US, UK and other countries were involved in these people being tortured by the Muammar Gaddafi regime,’ he says.

‘I’m not saying there are hundreds of cases like that, but that case illustrates that we need to look at what else might have happened that we don’t know about that also compromises the relationship, as well as making different governments of different states complicit in abject torture.’

Following conversations with former senior State Department officials, Mora is all the more convinced of the project’s importance for policy-makers worldwide. ‘These officials have told us on the record that helping manage and respond to the European backlash for American legal decisions, such as torture, Guantánamo, military commissions and death by detention, was the number one foreign policy problem for the US State Department in 2005,’ he says. ‘For a former senior State Department official to say that about torture helps indicate the importance of this issue even compared with other foreign policy issues. We’re convinced that this is an issue that needs to be better understood by policy-makers and indeed everyone.’

Through West Point the Carr Centre is creating a network of US military academies and held a two-and-a-half day conference at West Point earlier this year, which examined the consequences of torture at the tactical level.

For the UK component of the project Mora says a potential collaboration with the likes of West Point’s UK equivalent, the Royal Military Academy Sandhurst, could be vital to pushing the debate forward. ‘We’re certainly looking into reaching out to the significant international academies like Sandhurst,’
he says. ‘Having that network to discuss not only the issue of torture, but other issues dealing with the relationship between human rights and national security creates a very unique forum to discuss these kinds of issues.’

Torture: more significant, not less

All members of the steering group agree the project couldn’t come at a better time given the resurgence of the debate on the use of torture in the US. ‘In the current US presidential campaign the issue of torture has not gone away, if anything it has become more prominent,’ says Mora. ‘Donald Trump is an enthusiastic supporter of torture and for that matter his two leading opponents in the Republican Party were also supporters of torture. Polling in the US indicates that almost 60 per cent of the American public believes the use of torture is appropriate for keeping Americans safer in the “war on terror”. So this country is effectively one election away from repeating the mistakes of the past and alerting profoundly our concept of essential human rights by taking the right to be free from cruelty away from that basket of protecting individual rights and putting it back in the arms of government where it’s being treated like a policy decision like any other.’

Ellis agrees the broader trend in the US to justify the use of torture to extract information from suspected terrorists is extremely concerning: ‘When you look at the general view in the US there has been a sharp increase in the number of citizens that see torture as acceptable – that’s alarming to me and it should be alarming to everyone,’ he says.

‘The fact that there’s even a political debate now on the use of torture and on one side of the debate those that are proponents of the use of torture are actually gaining momentum is shocking. I think this reinforces the purpose of this project to try and counter that.’

It’s difficult to tell when exactly the protection of human rights started backtracking, all of a sudden people lost their moral compass and I believe this laid the seed for what is now called Daesh or IS

Hans Corell
Former UN Under-Secretary-General for Legal Affairs;

‘I’m troubled that torture is becoming a more significant issue,’ agrees Corell. ‘9/11 was a very serious development, and although it’s difficult to tell when exactly the protection of human rights started backtracking, all of a sudden people lost their moral compass and I believe this laid the seed for what is now called Daesh or IS. This is why the situation in the UK and the US needs to be examined thoroughly to find out what happened.’

Although the project will no doubt raise some uncomfortable truths and questions for government, the military and national security agencies, Méndez says these issues must be addressed if the US, the UK and other nations are to learn from their mistakes.

‘I think it’s going to be a very important inquiry and it’s not going to be easy, but I think everybody will understand that there’s merit in doing this and not just for looking at the past, but also because this possibility of going back to practices after 9/11 is always going to be present,’ he says. ‘If there continue to be terroristic attacks in Europe and even in the US there’s going to be a temptation to go back to that. I think it’s very timely to be candid and honest about what actually happened and whether we didn’t pay a much higher price than we should have for doing something that was illegal and immoral.’

Ellis is confident the project will provide some lasting lessons: ‘Hopefully, adding the IBA’s voice to this issue will make particularly policy decision-makers think twice before they head down a path that would include and accept a position of torture that they would see as permissible,’ he says. ‘I’d like the IBA’s voice to remind those individuals and the international community at large that there is a non-derogable prohibition against the use of torture and that we need to adhere to that prohibition and to the principle that torture is an egregious violation. I want to put that back in focus because it’s clear, particularly in the US, that lessons learned from the so-called “war on terror”, where torture was indiscriminately used, seem to have just disappeared and it’s very much a case of déjà vu.’

Ruth Green is Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org