With Human Rights Watch releasing its scathing report on British counter-terrorist policy today, Manfred Nowak - the United Nations special rapporteur for torture - offers a bleak view of the UK and US' conduct of the "war on terror".
OurKingdom, openDemocracy's discussion of constitutional rights (and the lack thereof) in Britain, posts commentary from HRW's Ben Ward.
In what ways has the Bush administration directly or indirectly allowed for torture?
The Bush Administration has done quite a lot to undermine the absolute prohibition of torture, for instance by interpreting torture in a very restrictive manner and claiming they are not really torturing. To them, torture is only really something after which you suffer long-term mental disorder or organ failure. Everything else is called "humanely-degrading treatment" which needs to be balanced against the threat of terrorism - it's a trade-off between security and human rights.
One can employ these harsher interrogation methods against suspected terrorists because the US feels itself to be in a war on terror. It's breaking a taboo and since the US was always a champion of human rights and democracy, and one of the oldest countries to have a Bill of Rights in their Constitution, this negative example has many negative consequences for the US and many other states. If even the US considers these means of detention, these flights lawful then, other countries feel that they can do the same.
With US actions, new sources of torture have come into place, most specifically the outsourcing of torture to countries like Syria, Egypt and Jordan. Is there any precedent for this? How has the Bush administration been engaged in it in recent years?
I do not know any precedent for what they call "extraordinary rendition". There is a precedent for "ordinary rendition", of suspected terrorists abducted by the CIA, Israeli or other intelligence services in another country to be tried domestically. This has also been illegal but was at least done for the legitimate purpose of bringing someone to justice.
Extraordinary abduction is the opposite - depriving individuals of liberty without any legal remedies in order to send them to countries that are known for torture. This violates the absolute prohibition of refoulement: countries are not only not allowed to torture, but also not allowed to send suspects to countries that will torture them. This was a systematic practice, and I'm afraid, an ongoing practice.
What kind of incentives were governments given to allow rendition and to conduct the torture? Should equal pressure be brought to bear on the US as well as the cooperating governments in, be they in Cairo, Damascus or Amman?
Of course, this is also the responsibility of countries like Egypt or Syria who are well known for systematic practice of torture. They are the first ones violating international human rights law, even though they have ratified the UN Convention Against Torture. They are thus obligated to criminalise torture. But also every state which sends suspects to torturing countries violates the convention.
Countries like the UK have tried to circumvent this problem by getting "diplomatic assurances" in which they ask those countries to be so kind to not torture. These diplomatic assurances are a clear attempt to circumvent the absolute prevention of refoulement.
The phenomena of Islamic terrorism present new challenges to the international system and to nation-states - it's subnational, it's transnational. Do you accept claims that the rules and norms are too rigid, and that states should be allowed alternate, albeit unsavoury, means to protect themselves in this day in age?
I accept that 9/11 was a more serious and better coordinated global act of terrorism then before. Usually, we were fighting terrorism as a local phenomenon, whether in Ireland, Spain, Sri Lanka, Italy or elsewhere, and the terrorists were in principle never really "globally networked". In this sense, contemporary Islamic terrorism has a new quality, but this does not mean the rules need to be changed. We know how to deal with terrorism. And we know how to deal with global organised crime - we learned to deal with the mafia in Italy and Russia, and with trafficking in human beings, drugs, arms and nuclear devices.
All these are global, internationally-organised crimes. But still, nobody would say that organized crime needs to change the rules of human rights. The rules should still be the same; suspects should be arrested, brought before justice, and if enough evidence is presented, be sentenced. It is counterproductive to say that human rights should not be applied since human rights are a very flexible system. Many human rights can and should be restricted in the face of serious challenges; think of freedom of assembly, privacy, and so forth. People are willing to accept necessary infringements on their right to privacy, since such surveillance is proportional to the threat.
But the prohibition of torture is an "absolute right", which means that there is no proportionality to be applied. A little bit of torture doesn't make us safer, it's the opposite. As soon as you undermine the prohibition of torture, and you start in the "ticking bomb scenario" to apply torture, it very quicky spreads and creates new terrorism. We now have more terrorists since we are fighting terrorism by violating our own standards and the international rule of law.
From the perspective of policy-makers in Washington or London, can torture be seen as detrimental to national security? How can policy-makers be persuaded that torture is not in their best interests?
We are fighting a new phenomenon. We are looking at a kind of terrorism in which suicide terrorists are willing to sacrifice their own lives for what these conflicts - be it in poverty, be it the middle east conflict, be it in the arrogance of the North in this kind of "clash of civilization" (which is a bit of a self-fulfilling prophecy) - rather then thinking we can fight it with a purely security-oriented counter-terrorism strategy.
Terrorists want to force us to give up our own universal values of pluralist democracy, human rights and the rule of law. They have achieved this to a certain extent by destabilizing our value system and our pluralist democracies. If we had stuck to our values within the international framework of human rights, there would be fewer terrorists who are convinced that their actions will be successful.
Does recent publicity on cases on rendition and torture, like the Arar commission, signal a turning of the tide?
Yes. The world was shocked after 9/11 and there was a lot of solidarity with the US. For the Americans, this was an eye-opener. There was broad solidarity, as made clear by the UN Security Council authorization of the Afghanistan invasion. At that point, many NGOs and also human rights monitors overlooked for some time in which direction the counter-terrorism strategies went. It took some time to wake up to a situation in which our fundamental values were put into question.
The US mid-term elections show that civil society in the US feels that the unilateral arrogance of the Bush administration has seriously damaged the reputation of the U.S. everywhere in the world. Whenever I come to the U.S., most people I meet feel the need to apologise for their government. People realize that even a world power needs international solidarity. It will be very difficult for the next president to repair what President Bush and his close advisors have done to the country's reputation.
We are now on a good track and people are realizing that we have been on the wrong track. We need to redefine our strategy towards threats like terrorism, but also the many other threats facing us today. We're losing sight of certain dimensions. About 1 billion people live in poverty, thousands of people die every day because of starvation and preventable diseases. In the U.S., 3000 people were killed - this is 3000 too many, but we should not lose sight of the many other human rights and security problems around the world.
Kofi Annan was clear in saying that the three major UN objectives are security, development and human rights. They are all interlinked. We should start to improve the human rights situation. Then we will already have contributed greatly to improving development, eradicating poverty and at the same time strengthening security.
Going back to the US, you mentioned the next US administration. But do you have any hope that with the Democratic victory in Congress, the Bush administration will have to take criticism of its policies more seriously?
You cannot really rule against Congress, and members of the House and the Senate have made it clear that it will better uphold Congress' role of checking and balancing executive presidential power. The Supreme Court overturned some of the president's policies, but the lower courts all failed. Now, there is a turning point again, as visible in the resignation of Donald Rumsfeld as a first sign of a change in policy.
I am sure that certain of our clear recommendations - to close Guantanamo Bay, to end the policy of secret detentions and rendition - will still be taken up under the current administration.
Are you satisfied with the degree of access given to your investigations by all governments?
Of course I am not. I am grateful to those that have granted access during my fact-finding missions. I've been in office for two years and in that time I've been able to carry out more fact-finding missions to quite important countries than most other rapporteurs. I've been to Georgia, China, Nepal and many others, including a joint mission to Guantanamo Bay. I am going to Sri Lanka, to Togo, Nigeria, Indonesia and Zimbabwe, so there is much going on.
In these countries, I should be able to carry out my mandate within the terms of reference - unannounced visits to places of detention and speaking in private with detainees. There are many governments which are not responding, particularly in the Middle East. The only country I have visited there is Jordan. Egypt, Syria and Saudi Arabia - more serious situations - have failed to invite me yet. I have been in contact with Iraqi and Afghanistan governments, but of course that is a different situation. I am trying to repeat my request to be invited to many countries, like India, which even my predecessor was not invited to visit.
And then there are the countries in between where I have been invited, but they have not complied with my full terms of reference. These are two of the most important countries. The US did not grant me real access to detainees or private interviews, and I had to cancel the visit. The Russian Federation guaranteed me full compliance with my terms of reference and invited me to visit the north Caucusus republics, including Chechnya, but then suddenly said that I had to comply with their laws, which meant that I could not carry out unannounced visits and had to postpone my visit. Russia promised a solution of the matter by October 2006, but this has until today not happened, so I'm worried that Russia has actually withdrawn its invitation. However, one should not give up hope. I am still confident that I will be allowed to visit Guantanamo and other places of detention where US officials hold suspected terrorists.
My last two questions are about the United Nations, which you represent. Do you think the UN system as it is set-up now is sufficient for checking the excesses of governments like Russia and the US that are permanent members of the UN security council?
The UN system as it stands now is in principle still the same as the allies of WWII, which doesn't reflect any more than present situation. It starts with the permanent five, whose presence on the UN Security Council in this form can only be explained in WWII terms. There are other countries that should have a strong influence in the UNSC.
We should try to find another solution then the absolute veto, because this means that major decisions, like in Darfur, are sometimes unaddressed because the permanent five make their consent dependent on the consent of the local government. There are many other security and human rights-related crisis situations in the world where the UN is not fulfilling its task as laid down in the charter. Kofi Annan in his report "Enlarging Freedom" has presented a visionary but at the same time realistic assessment and proposal of what minimum reforms are required to transform the UN that is meeting challenges both in the field of development and of security.
We have reformed of the human rights mechanism - the Human Rights Commission has been replaced by the Human Rights Council - but its practice is still far from encouraging. We still experience the politicisation of decision-making in the human rights field. Major changes are needed to transform the UN into an organisation up to the challenges of the 21st century.
You mentioned Kofi Annan, known recently for his criticisms of the Bush administration's foreign policy and his critique of US unilateralism and disrespect for human rights. The new secretary-general, Ban Ki-Moon, has distanced himself from some of the more strident statements of his predecessor. Are you confident that he will monitor human rights abuses as zealously in the coming years as Annan?
I think it is too early to speculate, but the new Secretary General also identified the thee core tasks of the UN as security, development and human rights. We should give him a chance to develop his own way. Kofi Annan said in a very touching interview that "I did it my way and he should do it his way". Every secretary general comes with a different background and different relations to major stake-holders.
The secretary general should stick to visions and the principles in the UN Charter. At the same time, the Secretariat cannot act against the major governments. The UN is the sum of all the governments. You need to criticize governments but also cooperate with them, since they make the major decisions. As secretary general, your role is to implement these decisions. It is probably the most difficult job in the world. You have very clear principles, but your actions cannot be as clear.
Human rights, for example, are often violated by governments who are responsible for their protection. You have to approach governments with your moral and political authority to change a situation and bring together governments to exercise their collective responsibility to protect individuals against major human rights violations.
Thank you, Dr. Nowak, for your time. It's been a pleasure.
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