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Terrorism, Counter- Terrorism and Torture

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Terrorism, Counter- Terrorism and Torture TERRORISM, COUNTER- TERRORISM AND TORTURE INTERNATIONAL LAW IN THE FIGHT AGAINST TERRORISM JULY 2004 REALISED WITH FINANCIAL SUPPORT FROM THE EUROPEAN INITIATIVE FOR DEMOCRACY AND HUMAN RIGHTS The Redress Trust 87 Vauxhall Walk, 3rd Floor London, SE11 5HJ Tel: +44 (0)207 793 1777 Fax: +44(0)207 793 1719 Website: www.redress.org ACKNOWLEDGMENTS This report was written by Gabriela Echeverria, Legal Advisor (International), and edited by Carla Ferstman, Legal Director. REDRESS would like to express it sincere appreciation to Evelyn Sook May Yuen for her assistance in the research and preparation of this report and to Kevin Laue and Clementine Olivier for their many helpful comments on the draft of this report. CONTENTS INTRODUCTION ................................ ................................ ................................ .................. 1 PART 1. THE DISCOURSE................................ ................................ ................................ .. 3 1.1. DEFINITION/NON-DEFINITION OF TERRORISM..................................................................................3 1.1.1. Defining the ‘Crime’ of Terrorism in Domestic Law .......................................................................................................4 1.1.2. Vague and Overbroad Definitions of Terrorism.............................................................................................................5 1.1.3. Defining the Crime of Terrorism: Some Principles and Guidelines of International Law ..............................................7 1.1.4. The Advantages and Disadvantages of Vague Definitions.........................................................................................11 1.2. TERRORISM: A THREAT CONSTANTLY REQUIRING AN UPDATE OF INTERNATIONAL LAW......13 PART 2. THE LEGAL FRAMEWORK ................................ ................................ ................ 14 2.1. TERRORISM AND COUNTERTERRORISM UNDER INTERNATIONAL LAW.....................................14 2.1.1. Counter-terrorism: A New Obligation under International Law....................................................................................15 2.1.2. Lack of Human Rights Safeguards in Implementing the “New” Obligation to Counter Terrorism...............................15 2.2. TORTURE AND ILL-TREATMENT UNDER INTERNATIONAL LAW ....................................................17 2.2.1. The Absolute Prohibition of Torture and Ill Treatment.................................................................................................17 2.2.2. Torture: A Jus Cogens Principle and Non-Derogable Right........................................................................................18 2.2.3. The Absolute Obligation of Non-Refoulement under International Law......................................................................19 2.3. TORTURE WITHIN THE DISCOURSE OF TERRORISM: QUESTIONING ITS ABSOLUTE PROHIBITION?......................................................................................................................................21 2.3.1. National Security vs. Human Rights............................................................................................................................21 2.3.2. Questioning the Official Prohibition of Torture: The ‘Ticking Time Bomb Exception’..................................................25 PART 3. THE FACTUAL IMPLEMENTATION ................................ ................................ ... 27 3.1. TRANSFERS: FORCEFUL TRANSFER OF PERSONS SUSPECTED OF TERRORIST ACTS ..........27 3.1.1. Law Governing inter-State Transfers: Extraditions, Deportations and Non-Refoulement...........................................27 3.1.2. Procedural Guarantees for Inter-State Transfers of Individuals: Extraditions and Deportations ................................28 3.1.3. The Use of ‘Diplomatic Assurances’ and/or ‘National Security’ to Circumvent the Non-Refoulement Obligation ......31 3.1.4. Unlawful Renditions: Forceful inter-State Transfer of Individuals Outside Legal Procedures.....................................36 3.2. DETENTIONS........................................................................................................................................39 3.2.1. Conditions of detention and treatment during interrogations ......................................................................................39 3.2.2. Human Rights Safeguards against Torture and Cruel, Inhuman or Degrading Treatment and Punishment during Detention .....................................................................................................................................................................40 3.2.3. International Humanitarian Law Safeguards against Torture and Cruel, Inhuman or Degrading Treatment or Punishment during Detention ......................................................................................................................................43 3.2.4. Conditions of Detention and Treatment during Interrogation ......................................................................................44 3.3. REPARATION: VICTIMS’ RIGHTS TO PROCEDURAL AND SUBSTANTIVE REMEDIES..................55 3.3.1. The Right to a Remedy and Reparations for Victims of Torture and Cruel, Inhuman or Degrading Treatment or Punishment..................................................................................................................................................................55 3.3.2. Limiting the Right to Reparation: Torture and Counter-terrorism................................................................................57 3.3.3. Absence of Valid Justifications for Torture under International Law ...........................................................................70 3.3.4. General Immunities for Counter-terrorism actions and Military Operations Conducted in the ‘War against Terrorism:’ Impunity for Torture? ...................................................................................................................................................74 CONCLUSIONS ................................ ................................ ................................ ................. 75 INTRODUCTION Terrorism in not a new phenomenon. Neither is torture, nor States’ dilemma to “balance” national security and human rights when fighting ‘terror.’ Throughout modern history, ‘terrorism’ and ‘counter-terrorism’ have been words commonly used in the language of law and politics. And in fact, this is not the first time that a ‘war on terror’ has been launched.1 So, is it true that there was a ‘before’ and ‘after’ 11 September 2001? The atrocities committed on 11 September 2001 in the United States’ cities of New York and Washington DC, commonly referred to as 9/11, are said to have changed the way that international law and politics are perceived and should be conducted. According to the United States (US) and some of its allies, the threat posed by terrorism today is so dangerous that it not only requires recourse to the international use of force (war)2 but it even necessitates a rewriting of the laws and customs governing warfare. Almost three years have passed since the events on 9/11, during which the world has been witnessing this ‘war’ on terrorism---from Afghanistan to Iraq, from Guantanamo Bay to Abu Ghraib. During this time, much has been written on the legality of the use of force by States and on the need to balance States’ national security interests with the obligation to protect human rights. Was the war in Afghanistan and Iraq legal under international law? Are counter- terrorism measures proportional to the threats posed by terrorism? But, although addressed in the “public debate,” there had been less written about the effects that the ‘war on terror’ has had and continues to have on the absolute legal prohibition against torture and other forms of cruel, inhuman or degrading treatment and punishment. However, the recent scandal at Abu Ghraib prison in Iraq, where photographs and videos of US soldiers abusing Iraqi detainees in ways that constitute torture or cruel, inhuman and degrading treatment were taken and circulated in the media, brought the issue of torture to the centre of the analysis of the ‘war on terror’. Were these isolated events? Were they inevitable consequences of the particular way in which this ‘war on terror’ is being fought? Are they evidence of a wider policy that may be attributed to the US administration in its ‘war on terror’? This report analyses the impact of recent counter-terrorism measures on the practice of torture and other forms of ill-treatment. It explores how the discourse of terrorism is vague enough to allow States to justify almost all governmental actions in terms of national security and by doing so (whether in a “war” or in an “emergency”) suddenly justify human rights violations, including torture and cruel, inhuman or degrading treatment and punishment. Furthermore, this report reviews the rationale, that torture and cruel, inhuman or degrading treatment and punishment are defensible as “effective means” of obtaining information. This report draws significantly on the current arguments and actions to contextualise torture and other forms of ill-treatment when linked to counter-terrorism activities, including in the context of the ‘war on terror’. However, the analytical scope of the present report is wider than simply scrutinising the way in which the US-led “war on terror” is currently being waged.
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