Lecture 3: Torture and International Law

Dr. Michelle CowleyApplied Social Sciences

University of Southampton

One seminar every two weeksGroup 1: …Group 2: …Additional reference to today’s

lectureSmith, R. K. M. (2004). Textbook on International Law. Oxford: Oxford University Press Ch.4 and Ch.14

The Universal Declaration of Human Rights

The Geneva ConventionDefending Rights after 9/11Liberty vs Security: Guantanamo BayEvaluating Contemporary

Perspectives on Torture and International Law

Legal and Psychological Perspectives

Articles 1, 3 and 5

Smith, R. K. M. (2004) Textbook on International Human Rights [SOCI3062 Box file]

The content of the declaration

‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

Article 1

‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.’

Article 2See www.ohchr.org for the Office of the UN High Commissioner of Human Rights

UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984

Committee Against Torture (implementation thereof)

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’

Article 5

See www.ohchr.org for the Office of the UN High Commissioner of Human Rights

A Declaration of the General Assembly only has a strong moral force, it is not legally binding

DerogationsNational law is a priorityHierarchy of rightsHuman rights are indivisible

Guidelines for the Treatment of Prisoners of War

See www.icrc.int The International Committee of the Red Cross (Humanitarian Law)

The U.S have signed up to the Geneva Convention guidelines for the treatment of prisoners of war (PoWs)

PoWs are entitled to the following: No degrading public displays of prisoners Allowed to congregate with other prisoners To elect a representative from their group To labour for pay Cooking their own food Sending letters to their families N.B. to withhold information beyond their name, rank

and serial number Posting of these rights in languages understood by the

prisoners.

See www.icrc.int The International Committee of the Red Cross (Humanitarian Law)

Liberty vs Security: Guantanamo Bay

Where is Guantanamo? Who is being detained there?

15 years old (youngest detainee) Most are in their early 20s Saudi origin (25% and largest percentage) Al-Queda Taliban

What does the detention centre look like? Why Cuba? Anyone?

See Chapter 4 of Leone & Arrig (2003)

Argument 1: It does not make sense to release potential terrorists, or detainees who have been shown to be adherents of movements that directly or indirectly support the 9/11 attacks

Argument 2: Even if there is not enough evidence to convict them of a crime, a ‘strong suspician’ will suffice for detention pending trial

Argument 3: Prevention of a future action is more sensible than the conviction of past action in an ongoing military situation

The objective: To gather intelligence about a network and its future targets

Is anticipatory detention legal?

See Chapter 4 of Leone & Arrig (2003)

No degrading public displays of prisoners

✔ (U.S. claim it is for the detainees’ privacy)

Allowed to congregate with other prisoners

✕ (allowed to speak through the wire mesh in the cell, but movement of prisoners)

To elect a representative from their group

✕

To labour for pay ✕Cooking their own food ✕ (Halal food is prepared)Sending letters to their families

✔

N.B. to withhold information beyond their name, rank and serial number

✕ (the purpose of indefinite detention is to gather intelligence)

Posting of these rights in languages understood by the prisoners.

✕ (The Red Cross have a semi-permanent presence at G. Bay)

Table 1: A comparison between the Geneva Convention Guidelines for PoWs and Guantanamo Bay conditions (adapted from Lelyveld, 2003)

*Islam prayer and ministry is allowed

Legal and psychological perspectives

Prison guards from Georgia (G. Bay no worse than high security prisons in the U.S.) …

Can you think of the main legal difference between prisoners in Georgia and detainees in G. Bay?

Not knowing when you will be free… (Nov 13th 2001 Military Order signed by George W. Bush)

Geneva convention agrees until conflict ends (defining the war against terrorism as a conflict may be problematic)

‘Physical vs Mental Anguish’ (Christmas of 1944 at Auschwitz, Frankl, 1984)

‘Unlawful enemy combatant’ (One size fits all) ‘enemy combatant’ (Long Island Nazi Supreme Court term,

1942) Right to counsel Right to speedy trial

The secrecy about the procedures of interrogation (Amnesty International call)

Detainees do not have PoW status and their indefinite detention may be interpreted as inhumane

But, the U.S. have a case, given the unusual threat and the Geneva Convention has not spelled out provisions such a threat to international security (Smith, 2004).

Is there the possibility that some detainees are innocent? What were the methods used to obtain detainees

(authenticity of intelligence) Were investigations carried out before the detainees were

labelled guilty? Article 8 of the Geneva Convention on PoWs tells ICRC

delegates to consider the imperative necessities of security for the state wherein they carry out their duties.

But is G. Bay preventing further attacks? Is the law of war about civil liberties one of restraining human

beastliness (Roberts, 2003)?

‘…is the toughness of the detention regime a product of anything other than the

legitimate security concerns’?

(Lelyveld, 2003)

If the aim is to obtain intelligence what are the methods used (unlikely voluntary)?

How long does it make sense to treat all detainees at G. Bay as potential suicide bombers?

How structured is the environment? Trait Theory (e.g., Eysenck,1967; Costa & McCrae,

1999) Situationist (e.g., Mischel, 1968) Interactionist (e.g., Bandura, 1999) The long-term perspective will need to address the

psychological consequences of G. Bay procedure…

See Gross Ch.4

Solitary confinement: Contrary to Article 7 of the International Covenant on Civil and Political Rights

Sufficiently severe mental suffering: contrary to Article 3 of the European Convention

‘No exceptional circumstances whatsoever,…may be invoked as a justification for torture (Art. 2(2) UN Convention on Torture).

But infringement of human dignity does not necessarily pertain to physical injury

But inhuman treatment without physical injury may not necessarily constitute torture…

Seminar we will be working with these issues…