Over the past few days, the media and human rights communities have devoted much time and many column inches to discussion about torture: techniques, reasons, implications, weaknesses, and the like.
Should the US Senate intelligence committee’s report on the CIA’s interrogation tactics during the War on Terror have been written? Should it have been published? Should more of what’s come out have been kept secret? Do we trust the security services, or politicians, or lawyers, to make decisions about what is and is not acceptable use of force against detainees? Does torture work or does it backfire? If it does work, is that justification for using it?
These are all important questions, but we are missing one crucial one: how can champions of liberalism tell other states what to do when they are practising exactly what they preach against?
That problem is an old one, and it has stalked the human rights project ever since it took shape in the aftermath of WWII.
Two tribes
After the 1948 Universal Declaration, international human rights law swiftly split into two ideological camps, with civil and political rights on the one hand; economic, social and cultural rights on the other. Liberal democracies principally supported the notions of freedom from state interference, while communist and socialist states promoted freedoms to access things from governments.
And although all rights are interdependent, and have been recognised as such throughout the modern human rights era, the same ideological divisions still run deep.
European countries may ratify treaties on economic, social and cultural rights, but the protection and promotion mechanisms to enforce them are all but non-existent. The US, in many ways, is more honest in its blunt refusal to sign up to those obligations. After all, many socialist and former communist states, or at least those who lay claim to such ideologies, take a similar stance on civil and political rights.
Ultimately, the more powerful the country – with the US and China being the most extreme examples – the less likely it is actively or tacitly to uphold human rights that don’t match its worldview.
Low expectations
And so we have come to expect the Chinas and Russias of the world to arbitrarily arrest or involuntarily disappear political prisoners despite every person’s rights to freedom of expression, to liberty, to political participation. Equally, we’re not surprised that millions of people in the US lack access to adequate food, healthcare or housing, despite the country’s international legal obligations to ensure access to those basic subsistence rights.
We scarcely bat an eyelid when the likes of Australia and Canada systematically violate the rights of their indigenous populations, despite requirements to eliminate racial discrimination and not to discriminate against minorities.
And we shrug our shoulders at the subjugation of women and homosexuals across much of the Arab world – even though those same countries have ratified the treaty on eliminating discrimination against women.
Meanwhile, those very same states which abuse rights that are not part of their ideologies, simultaneously champion the rights that they “believe in”. Islamic states try to convince the world that there is a right not to have one’s religion defamed, while simultaneously discriminating against, expelling or imprisoning religious minorities among their populations.
China talks about human rights law as a neo-colonial tool of oppression, while trying to justify its own neo-colonial projects to occupy Tibet and annex Taiwan. Sri Lanka promotes a “right to peace” at UN bodies, but systematically violates various rights (including the right to life) of its Tamil population.
But the countries we ought to be really concerned about this week are the liberal democracies who trumpet freedoms from state interference.
Fudging it
The main culprit, of course, is the US, but we ought not to let off the hook its many allies that have been complicit in the perpetration of violations against individuals’ rights to liberty, to life, and to freedom from torture.
The US does not ratify many human rights treaties. It is yet to become bound by the Convention on the Rights of the Child, let alone the International Covenant on Economic, Social and Cultural Rights.
However, it is party to the International Covenant on Civil and Political Rights that prohibits torture, and it has chosen to be bound by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which expands upon that prohibition in far greater detail.
Those international treaties are not nebulous. They contain clear, legally binding obligations that all parties must respect and implement within their territories.
The prohibition against torture is absolute. In law, there can be no justification or excuse for torture, and there is no legal reason for derogating from or limiting the prohibition. That much is clear from every piece of international jurisprudence on torture.
And it was reiterated this week by Zeid Ra'ad Al-Hussein, the UN high commissioner for human rights, who responded to the Senate report by quoting the UN Convention against Torture:
… and I quote – “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.” The Convention lets no one off the hook – neither the torturers themselves, nor the policy-makers, nor the public officials who define the policy or give the orders.
The Senate committee’s report clearly shows that the US has breached its international obligations. It involuntarily disappeared detainees; it denied them access to courts or a fair trial; it tortured them or subjected them to inhumane treatment. The range of techniques detailed in the report systematically violate international treaty obligations on the prohibition of torture.
They also include the use of techniques for which the US stridently criticised Soviet leaders, Saddam Hussein, and other dictators, and which Washington has long used as a pretext for intervention or interference in non-democratic regimes – even while sanctioning the same techniques for various clandestine applications during the Cold War.
Liberty and justice for most
America is the self-proclaimed “leader of the free world”, but we might ask what that world is free from. From oppression? From dictatorship? From injustice? From arbitrary interference in citizens’ personal affairs? Yes to all those things – unless you’re a suspected enemy of that hegemonic state.
Because then the security services, bolstered by the legal advisers on the government’s payroll, will ignore all of the ideologies that the US notionally aims to export to, and impose upon, other countries. If you are perceived as a threat to the US, you lose all of the rights and freedoms that the US demands be given to the other 6,999,999,999 people of the world.
And if you are suspected of having information that would save the life of an American citizen, you are no longer sufficiently human to retain your fundamental rights and freedoms.
The US is one of the world’s greatest advocates of civil and political rights. It views those rights as a crucial part of liberal democracy. But this week it has been shown to be as hypocritical as its enemies. If it cannot practise what it preaches, why should any other country listen to it?