Former President George W. Bush’s confirmation that he authorized the use of “enhanced interrogation techniques” against detainees held in secret US custody serves to highlight once again the absence of accountability for the crimes under international law of torture and enforced disappearance committed by the USA during what the previous administration called the “war on terror”.
It has long been known that six days after the attacks of 11 September 2001, President Bush authorized the Central Intelligence Agency (CIA), among other things, to set up secret detention facilities outside the USA. Multiple human rights violations were committed against detainees held in the CIA’s secret program. Those who authorized and carried out these abuses have not been brought to justice.
In his memoirs, leaked to the media in advance of publication, and in an interview on NBC News broadcast on 8 November 2010, the former President confirmed his personal involvement in the interrogation techniques used in the CIA program when he said that he had authorized the use of “water boarding” and other “enhanced interrogation techniques” against so-called “high-value detainees”.
Water-boarding, in which the perception of drowning is induced in the detainee, is torture – as both the current President and Attorney General of the USA have acknowledged. Torture is a crime under international law. Under international law, anyone involved in torture must be brought to justice. This obligation does not end with a change in government.
Under international law, the former President’s admission to having authorized acts that amount to torture are enough to trigger the USA’s obligations to investigate his admissions and if substantiated, to prosecute him. Failure to investigate and prosecute in circumstances where the requisite criteria are met is itself a violation of international law.2
In the NBC interview, former President Bush focussed on the case of Khalid Sheikh Mohammed, who was arrested on 1 March 2003 in Pakistan and transferred to secret CIA custody. That same month, Khalid Sheikh Mohammed was “water-boarded” 183 times, according to a report by the CIA Inspector General. After three and a half years being held incommunicado in solitary confinement in secret locations, Khalid Sheikh Mohammed was transferred to military custody in Guantánamo, where he remains without trial.
Water-boarding was far from the only technique alleged to have been used against Khalid Sheikh Mohammed and others held in the secret program that violated the international prohibition of torture and other cruel, inhuman or degrading treatment. Other techniques included prolonged nudity, threats, exposure to cold temperatures, stress positions, physical assaults, prolonged use of shackles, and sleep deprivation.
The USA ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1994. Under UNCAT, in every case where there is evidence against a person of their having committed or attempted to commit torture, or of having committed acts which constitute complicity or participation in torture, the case must be submitted to its competent authorities for the purpose of prosecution, if the individual is not extradited for prosecution. The authorities must take their decision whether to prosecute in the same manner as in the case of any ordinary offence of a serious nature under the law of the state.
Failing to proceed with a prosecution on the basis that the accused held public office of any rank, or citing justifications based in “exceptional circumstances”, whether states of war or other public emergencies, is not permitted by UNCAT. Torture is also defined as a grave breach of the 1949 Geneva Conventions, meaning that investigation and submission for prosecution of all cases of torture in situations of international armed conflict is an express obligation under those treaties.
In the NBC interview, former President Bush said that he authorized the interrogation techniques in question because government lawyers had cleared them as legal under US law, and he asserted that using them had “saved lives”. Asked whether he would make the same decision today, the former President responded that “Yeah, I would”.
Under international law, torture and other cruel, inhuman or degrading treatment are never legal. No lawyer can render them lawful; no politician, legislator, judge, soldier, police officer, prison guard, medical professional or interrogator can override this prohibition. Even in a time of war or threat of war, even in a state of emergency which threatens the life of the nation, there can be no exemption from this obligation.3The same is true of enforced disappearance.
Whether torture is effective or not in obtaining useful information is irrelevant to the question of whether it is lawful – it never is – or whether an individual responsible for torture is to be investigated or prosecuted.
In August 2009 US Attorney General Eric Holder ordered a “preliminary review” into some aspects of some interrogations of some detainees held in the CIA’s secret detention program. However this review has been narrowly framed and has been set against a promise of immunity from prosecution for anyone who acted in good faith on legal advice in conducting interrogations. This falls far short of the scope of investigations and prosecutions required by binding legal obligations to which the USA is subject under international law, including under the explicit provisions of treaties the USA has entered into such as the Geneva Conventions and UNCAT.
Many people were involved in the USA’s authorization and use of torture and other cruel, inhuman or degrading treatment against detainees held in the CIA program. It is long overdue for the USA to conduct a full investigation into the crimes under international law committed in this program and to bring anyone against whom there is evidence of involvement in such crimes to justice.
Other governments, not least those which may have themselves been involved in facilitating the USA’s secret detention program, should call on the USA to meet its international obligations on accountability. Under Article 9 of UNCAT, “State Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings” brought against anyone accused of involvement in torture. In addition, any State Party in whose territory a person believed to have been involved in torture is present must take the necessary investigative, prosecutorial or extradition measures against that person. There must be no safe haven for anyone responsible for torture.
At the UN Human Rights Council in Geneva last week, the USA said that “advancement and enforcement of human rights must be pursued persistently over time, with accountability, follow through, continuing effort, and constant improvement”.4The USA’s failure to account for the crimes under international law committed in the CIA’s secret detention program suggests that the USA is promoting double standards, not international standards. On this question, its “arc of history” is currently bent towards injustice. This must change.
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