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After the torture report—rebalancing the scales of justice

In the voluminous responses to the long-awaited US Senate committee report on torture by the CIA, the essence of what must follow—prosecutions, not pardons—has been buried.

That is the question—a placard at an anti-Guantanamo demonstration outside the White House earlier this year. Flickr / Stephen Melkisethian. Some rights reserved.

The release of the US Senate Select Committee on Intelligence report on the Central Intelligence Agency (CIA) Detention and Interrogation Programme during the George W. Bush ‘war on terror’ is, first and foremost, an extraordinary example of democracy. The very fact that one state institution can investigate actions by another and publicly report its findings—albeit only through a heavily redacted summary—is significant evidence of a functioning balance of powers.

This simple truth was ignored by the Bush administration.

This is unknown in the vast majority of countries where torture demonstrably occurs or where there is substantial evidence as to its use. Italy is a case in point: such is the state of denial by national authorities that this crime is not included in the criminal code, in violation of Italy’s international legal obligations. Failure to criminalise torture guarantees impunity for the officials responsible for the deaths of persons under arrest or in detention. The absence of prosecution and of compliance with the rule of law is of particular concern, since these represent the foundation of non-dictatorial political systems.  

Democracy is not a static point but a continuous flux, a perpetual movement, which is not complete until and unless decisive actions are taken. Simple release of such a report is not indicative of, nor sufficient to demonstrate, democracy. It needs to be followed by another essential, non-negotiable element, accountability, lack of which would represent an absolute negation of the principles upheld by the report’s publication.

Non-derogable

Freedom from torture, which was exhaustively defined by the United Nations 30 years ago this week, is a non-derogable right, subject to universal jurisdiction, whose prosecution is not affected by the limitations of domestic statutes. If national laws do not comply, they are in violation of international law.

Torture is a heinous crime, which does not produce demonstrable advantages. Affirming that it had “produced little useful intelligence”, the Republican senator John McCain said: “[V]ictims of torture will offer intentionally misleading information if they think their captors will believe it. I know they will say whatever they think their torturers want them to say.”

This simple truth was ignored by the Bush administration. It resulted in further radicalisation around the world—at the expense of hundreds of thousands of lives of civilian men, women, boys, and girls in an unfortunately long list of countries, including Afghanistan, Iraq, Syria, Yemen, Nigeria, Somalia and Libya. The use of torture during decade-long wars also cost the US, and the states who fought or still fight alongside it, the lives of thousands of soldiers—and trillions of dollars which could have been used to foster peace and dialogue.

Accountability

Democracy is based, among other things, on the principle of the accountability of elected representatives to the citizenry. Democratic politicians, by accruing the honour and responsibility of taking decisions on behalf of a country, also accept that they must be accountable to judicial institutions, at national and international levels.

Therefore, on the basis of the information provided in the report, the US attorney general, Eric Holder, has to open investigations of, and prosecute, George W. Bush, Dick Cheney, George J. Tenet, Donald H. Rumsfeld, David S. Addington, John C. Yoo, Jay S. Bybee and any other official or person who took part in the initiation, development, oversight and implementation of policies authorising the use of torture. As clearly adumbrated after its release by Ben Emmerson, the United Nations special rapporteur on counter-terrorism and human rights, “the individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.

Emmerson continued: “The fact that the policies revealed in this report were authorised at a high level within the US government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.”

Example

In that context, ensuring the prosecution of those responsible is the only possible legal outcome. If the US wants to continue to promote democracy and strengthen respect for the rule of law at the global level, there is no other solution than making an example of itself in holding accountable those responsible for massive violations of human-rights and international law.

Any other outcome, including a presidential pardon based on alleged security concerns—as some authors have suggested—would not only comprise another violation of national and international law but would also present a further risk for global security. The denial of justice would represent the annihilation of the fundamental legal principles on which the current system is based.

One could paraphrase the 2002 National Security Strategy of George W. Bush, which is the cause and origin of all this: either you are with international law or you are against it.  


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