NurPhoto SIPA USA/PA Images. All rights reserved.Donald Trump is a man who defines himself by the number of norms he violates, according to Michael D’Antonio, the author of a biography, The Truth About Trump:
“He's always refused to be like other people when it comes to manners and respect for others and loyalty to the truth…He's kind of a barbarian in that way—he gets a thrill out of disturbing other people and proving that he doesn't have to go along with what other people expect.”
One issue most people expect a US president to go along with—or at least pretend to go along with—is respect for a jus cogens norm. Jus cogens norms “constitute the pinnacle of the hierarchy of sources of international law.”[i] They are “intransgressible principles of customary international law.”[ii]
According to Article 53 of the Vienna Convention on the Law of Treaties, a jus cogens norm is “a peremptory norm of general international law…accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
It is perhaps a sign of our times that on the same day of Sir Nigel Rodley’s death, Donald Trump was discussing the use of waterboarding (a torture technique that involves strapping a person to a board and dousing his cloth-covered face with water to cause the sensation of drowning) as an interrogation technique, as well as torture more generally. "Do I feel [waterboarding] works? Absolutely, I feel it works."
Sir Nigel Rodley (1941-2017) spent his life trying to convince governments to respect the human right to be free from torture. The prohibition of the use of torture is a jus cogens norm, as stated for example by the International Court of Justice:
“the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)…[which is] grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application…[and] it has been introduced into the domestic law of almost all States; [and that] acts of torture are regularly denounced within national and international fora.”
Rodley believed that “[t]orture is a crime, and like many other crimes, it is a crime of opportunity.” To prevent torture, a paradigm of transparency rather than opacity was needed in places of detention.
Simply put, people are at a greater risk of being subjected to torture if they are being held incommunicado (i.e. without access to a lawyer or a representative from the International Committee of the Red Cross). “The longer they were denied access to and from the outside world (i.e. to family, lawyers, doctors, courts),” Rodley wrote, “the more they were vulnerable to abuse by those wishing to obtain information or confessions from them.”
The need to prevent torture was a defining feature of Rodley’s celebrated career, both with Amnesty International and as the second UN Special Rapporteur on Torture, a position he held from 1993 to 2001.
For his part, Trump has made no secret of his desire to reinstate waterboarding. In one of the debates during the Republican presidential primaries during which the various candidates competed on who would be more willing to commit war crimes and to embrace torture, Trump declared that he would be willing to bring back “a hell of a lot worse than waterboarding.”
When the George W. Bush administration justified waterboarding in 2002, it did so under the erroneous legal justification that such a technique would not amount to torture and would thus be permissible in detention facilities during war times.
However, as demonstrated in Human Rights Watch’s 2011 report titled Getting Away with Torture: The Bush Administration and Mistreatment of Detainees, “courts in the US and other tribunals have repeatedly found that waterboarding, or variations of it, constitute torture and is a war crime.”
In fact, the US Department of State’s annual Human Rights Reports on Sri Lanka (from 2003-2007) and Tunisia (from 1996-2004) had classified “near-drowning” and “submersion of the head in water” as torture.
Against this backdrop, employing utilitarian arguments in support of torture in 2017 is a clear departure from the blanket condemnation of torture among leaders of what is referred to as the “free world.” Consider this statement by Trump in his interview on ABC News Network on 25 January 2017:
“I have spoken as recently as 24 hours ago with people at the highest level of intelligence, and I asked them the question 'Does it work? Does torture work?' And the answer was 'Yes, absolutely.'"
The alarming issue here is not just that some people consider torture to be an effective method of investigation and law enforcement. There will always be individuals and officials who unfortunately hold this view, regardless of the expert consensus on its inefficacy and its illegality as a matter of international law.
The Director of the European Union Fundamental Rights Agency, Professor Michael O’Flaherty, recounts how a senior Middle Eastern police official answered his rhetorical question: “is it ever acceptable to torture someone?” by saying: “yes, if that is the only way to get the suspect to talk.”
Such a view is common in some circles, but such pro-torture opinion is patently rejected among those who believe in international standards and norms. It is usually enough to point to the absolute prohibition of torture in international law (as a jus cogens norm). In 2017, the unacceptability and illegality of torture is widely accepted among scholars and practitioners.
The novelty and danger posed by the new US president is the fact that he either does not know, or does not care, that the prohibition of torture is one that is considered to be so fundamental that asking the question is in itself a denial of its blanket prohibition.
Imagine someone asking: “is rape ever justified?” or “does genocide work?” or “is slavery okay in some situations?”
Such questions by their very nature would seem to indicate an attempt to whitewash violations of the most serious and grave nature (rape, genocide, slavery) whereby asking a question about their possible benefits or effectiveness becomes a sign of complicity—or if one were to give the asker of such questions the benefit of the doubt, a sign of blatant ignorance about fundamental values and legal norms that should be common knowledge for everyone, not least the forty-fifth president of the United States.
Amnesty International celebrated Rodley’s “outstanding achievement, earning him a place in history…[as] an architect of the process leading to the international treaty which establishes acts of torture and other cruel, inhuman or degrading treatment or punishment as crimes under international law. He was also a kind and modest man who cared intensely about individuals’ human rights and whose commitment, humanity and sincerity inspired the deep respect and lasting affection of his colleagues.”
As for President Trump’s legacy on torture, he will be remembered as the man who got a thrill out of proving that he does not accept or even understand Rodley’s outstanding achievements.
This piece was first published on Jadaliyya on 31 January 2017.
[i] Christine Chinkin, “Sources,” in International Human Rights Law, ed. Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (Oxford University Press, 2010), 113.
[ii] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, International Court of Justice, 8 July 1996, para 79.