Article 4 of the ICCPR designated certain rights as non-derogable, and torture was included in this group, meaning that states are not permitted to restrict this right for any purpose. The Convention against Torture reiterates this in Article 1 when it dismisses “lawful sanction” as a justification for torture and in Article 2 where it states, “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.”¹

U.S. violations of this provision came to light in dramatic fashion in 2004 when pictures emerged of prisoners being tortured at the U.S.-operated detention facility of Abu Ghraib in Iraq. Many blamed the shocking developments on the Bush administration’s post-September 11th reinterpretation of the Geneva Conventions, which essentially held that terrorist enemies of the United States should not be protected under international law because of their status as “unlawful combatants” in the global War on Terror.²  Similar accusations against the Bush administration arose in response to the questioning and treatment of suspected terrorists held at the Guantanamo Bay detention center.

Part of the foundation for this argument rests on the question of whether suspected terrorists associated with al-Qaeda or operating in Iraq merited the status of “lawful combatant.” Lawful combatants are those who “at a minimum conduct their operations in accordance with the laws of war.”³ The laws of war have been internationally established by tradition and by international agreements such as the Geneva Conventions and Hague Conventions of 1907.⁴

Individuals engaged in conflict who adhere to the laws of war must be treated as prisoners-of-war and enjoy the rights afforded by the Geneva Conventions. It was argued that terrorists, “by repudiating the most basic requirements of the laws of war – first and foremost the prohibition on deliberately attacking civilians…put themselves beyond Geneva’s protections.”⁵

The origins of this policy go back to 2002 when lawyers in the Justice Department and Office of White House Counsel argued that the Geneva Conventions could be disregarded to protect the United States from imminent terrorist attacks based on the authority of the president as commander-in-chief of the armed forces.⁶

Prisoners affiliated with the al-Qaeda terror network and Taliban of Afghanistan had been transferred to the U.S. military base at Guantanamo Bay, Cuba – a “legal twilight zone” viewed by some administration officials as “the legal equivalent of outer space” – for interrogation by Central Intelligence Agency (CIA) operatives and U.S. military intelligence personnel. It was hoped these prisoners could be persuaded to provide information about future terrorist threats to the United States.⁷ In the words of then-White House Counsel Alberto Gonzales,

The war on terrorism is a new kind of war…The nature of the new war places a —high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians…In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.⁸

New guidelines were drawn up at the Department of Justice that detailed the techniques interrogators were permitted to use to procure information under certain limited circumstances. Some of these techniques could be characterized as torture. They could only be considered acceptable under a very narrow view of what constitutes torture under international law, a view that was opposed by many of the military’s most experienced lawyers, who felt it to be a violation of a fifty-year tradition of adherence to the Geneva Conventions. A “72-point matrix for stress and duress” instructed officials in which techniques could be used in which situations.⁹

According to a Justice Department memo, as long as techniques were not “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” and did not result in “significant psychological harm of significant duration, e.g. lasting for months or even years,” many questionable practices could be used. Justice Department officials suggested that soldiers engaging in these practices might be able to claim they were carrying out “superior orders” to avoid prosecution.¹⁰

Senior military officials sharply criticized the Bush administration’s position, arguing, “There is a calculated effort to create an atmosphere of legal ambiguity about how the conventions should be interpreted and applied.” This ambiguity allowed techniques that the Red Cross has designated “tantamount to torture” to become entrenched over the course of several years and eventually spread to the now infamous prison of Abu Ghraib.¹¹

Advocates of human rights were appalled when the history of the Bush administration’s so-called “torture memos” were revealed. The “superior orders” defense proposed by the Justice Department memos was uncomfortably similar to the “I was just obeying orders” plea offered by Nazi war criminals at the Nuremberg trials after World War II. The suggested justifications for torture expressly contradict the principles stated in Article 1 of the Convention Against Torture, which the United States ratified in 1994.¹²

Though the Bush administration has since retreated from the policies of 2002-2004 regarding torture and the Geneva Conventions, the arguments made in the “torture memos” raise important questions about the nature of rights in an increasingly globalized world. President Obama, upon taking office in January of 2009, signed an executive order to close Guantanamo Bay.  Obama said, “he was issuing the order to close the facility in order to ‘restore the standards of due process and the core constitutional values that have made this country great even in the midst of war, even in dealing with terrorism.’”¹³  Unfortunately, more than two years later, the controversial prison is still open and Obama’s ban on holding new trials has been reversed.¹⁴

Do changing conditions of international security, such as the renewed threat of global terrorism, mean that we should change our conception of the limits of human rights? Is the current framework, which was developed to apply to and be administered by the nation-states of the twentieth century, still appropriate for the twenty-first century? Should terrorists not affiliated with any state be classified as “unlawful combatants?” Should torture be a completely non-derogable right, or should exceptions be made? If so, what should the scope of these exceptions be? The debate on these questions will continue for many years to come.

1  “Convention Against Torture.”

2  Barry et al.

3  Rivkin Jr. and Casey.

4  “The Hague Convention, 1899-1954.”

5  Rivkin Jr. and Casey.

6  Priest and Smith.

7  Barry et al.

8  Barry et al.

9  Priest and Smith; Barry et al.

10 Priest and Smith.

11 Barry et al.

12 “Status of Ratification of the Convention Against Torture.”

13  Henry et al.

14 “Barack Obama Retarts Guantánamo Trials.”

 
Next: Non-Refoulement: Extraordinary Renditions and Outsourcing Torture