The truth about torture: on disclosure and obfuscation

The creation of an international court that could rule over severe crimes, including the absolute prohibition, should function as an effective deterrent for states members to the Convention. The legacy of clear, accessible judgments should provide for a solid cornerstone in order to ensure the respect of the rule of law across its jurisdiction. But when it comes to torture, the entire process of accountability relies on disclosure, that respondent states block each and every step of the way.

Al-Nashiri v Poland

In December 2013, the Court held a seminal hearing in the case of Al-Nashiri and Abu Zubaydah v Poland, one of the first applications lodged regarding member states’ collaboration – collusion – with the CIA in its rendition, detention and interrogation (RDI) program. The two men, still held in Guantanamo Bay, were detained in a black site, a secret prison, on Polish territory, where they were tortured before being sent to the naval base in Cuba. Poland has always categorically denied its involvement in what could come to be known as the torture program. During the hearing, the Grand Chamber repeatedly asked the government of Poland to provide any memorandum of understanding (MoU) that would have been undertaken with the United States. This could shed a much needed light on the extent to which Poland was expected to collaborate and hold responsibility for US intelligence activities on its soil. The hearing, which lasted over three hours, focused on repeated events of denial of access to information and documentation to the appellants and their lawyers. Ultimately, the Court requested Poland to comply.

Poland found itself in a position where documentation that had been submitted to the Court unequivocally pointed in the direction of collusion. It would be unthinkable that a state would allow foreign intelligence activities, especially of such wide-scale logistics – from the use of its airspace, airports, to detention facilities and armed guards – without prior contractual approval. The Court then offered Poland the possibility to submit any MoU under national security classification, provided by clause 33 of the Rule of the Court, so as to receive information on which to base a future decision without the documentation presenting a risk to the state by being disclosed along with the judgment and the rest of the case file. Upon this information being shared, I decided to challenge this classification, arguing that any deliberate collaboration with the CIA despite the actions being performed by agents in black sites – and the MoU perhaps even providing for Polish agents to be present during interrogations – was serious enough to warrant disclosure.

I received a letter a few weeks later from the Registrar’s Office that implied that Poland had not submitted anything despite the offer of the information to be classified, and that in any case, a judgment was forthcoming. Sure enough, the decision was published on July 24, 2014, not only making note that Poland had indeed collaborated in the violation of the absolute prohibition under Article 3, but that the state was found in negative inference with the Court, refusing to provide information with regards to the activities under litigation. In a landmark ruling, the Court decided that evidence collected with media reports, press investigations and gathered by legal investigators was sufficient to make a determination, and would not need government-issued documents. Poland sought to overturn the decision, only to be found trapped between a rock and a hard place: the Court had ordered that it sought assurances, on account of having an agreement with the United States, that Al-Nashiri would not be facing the death penalty. Al-Nashiri is currently facing a troubled military commission for charges carrying a death sentence. Poland either has to detail its relationship with the CIA, or interfere without the possibility of a result.

Al-Nashiri v Lithuania

The investigation of the black site in Lithuania, that arose with the case of Al-Hawsawi, has has considerable political ramifications at domestic level. It did not stop lawyers for the state to argue for a curious interpretation of state responsibility at a hearing before the Chamber in June 2016, denying the veracity of press reports, the substance of prior investigations, the role of EU rapporteurs in previous inquiries, but never the body of work compiled by the US Senate in a report which executive summary was released, partially redacted, in December 2014. The extent of the denial was perhaps even more egregious than that of Poland, in light of two years worth of media coverage of EU states’ collaboration in rendition, acknowledging detention of several detainees that could be identified, even recalling the specific methods of torture to which they were subjected. In a harrowing book, journalist Crofton Black, who testified about his years-long investigation to the EU Parliament inquiry into CIA rendition, talks about the various contracts undertaken to build the black site in Antaviliai, a small village ten miles north of Vilnius.

 

Past and present officials gave testimony; requests for information were filed with ministries, the State Security Department and the Border Guard, the Customs, the Civil Aviation Administration and airports. The press, pundits and politicians commented loudly from the sidelines, speculating and sniping. Daily, contradictory stories emerged, like ripples expanding and interfering with each other, tell-tale signs of an unseen shoal beneath the surface. While some spectators were eager for scandal, others remained sceptical. ‘Anything can happen, but why do we have to believe that this has happened?’ asked the former head of the military, Major General Jonas Kronkaitis. ‘There are many people who think that little green men arrive in Lithuania from Mars, but do we then carry out an investigation? No, we leave it alone.’

Even after the hearing, the denial was maintained in the face of unequivocal coverage. Black carried on releasing information, from photographs to court transcripts, in stark contrast with the arguments put forward by the Lithuanian government, for whom the activities of a foreign state on its sovereign territory may as well be fortuitous at best, and at the very least exempt from scrutiny. Interference from intelligence holds a very specific history in Central and Eastern Europe, the epicenter of the Cold War, for decades satellite of a surveillance state, later chosen to be host to NATO bases and post-German reunification deployment. It seems that, in Lithuania like in Romania, Estonia or Poland, a relationship with the CIA holds more power than adherence to legal requirements under international human rights law. Exposure to the suffering endured by former detainees, and the role played even by facilitating detention if not directly organizing it, leaves a mark on public opinion, supporting ongoing investigations. Evading the scrutiny of the Strasbourg court and the committee of the Council of Europe tasked with verifying the enforcement of its judgments can only diminish the country’s standing within the organization, perhaps not to the point, however, of weighing significantly enough against the foreign interests inherent to a special relationship with the United States.

Ireland v UK

 When the legal advice supporting the use of torture by the CIA post 9/11 was declassified, a footnote jumped at the face of many observers: Bybee, advising the government, issued a long opinion on the threshold between ill-treatment and torture, and based his decision on a 1978 judgment from the ECtHR. According to him, the final ruling in Ireland v UK, which application was lodged in 1974, endorsed the CIA’s interrogation methods as “harsh” or “enhanced” interrogation techniques, never crossing the threshold into the absolute prohibition. That an international court could have ruled so decisively back then surely reassured the US government, then proceeding with experimentation of some techniques on one of it earliest detainees, Abu Zubaydah. It was later found that some of the methods had not been sanctioned by the Office of Legal Counsel (OLC). Nevertheless, the existence of that threshold and the use of this justification to approve of what would have come to define abuses under counter-terrorism law in our generation was a jarring find.

Forty years onwards, new elements have emerged after decades of investigation through British archives. The team of surviving men detained during the Internment in 1971, colloquially referred to as the “Hooded Men”, have petitioned to have their case reopened before the Strasbourg Court. A judicial review was underway in Belfast, during which a judge found himself playing referee between requests to release documents and government lawyers arguing first that documents didn’t exist, then that more time was necessary to field through the archives and release them in the appropriate conditions. The frustration over access to the truth and the duty of investigation as interpreted through Article 2 of the Convention is palpable, and has journeyed all the way to Strasbourg, where the Court has granted a second extension to the British government in regards to justifying their position on one crucial point: deliberate omission.

The documents that were submitted by the British Government after the application was declared admissible were found to be incomplete. The respondent state had deliberately hidden parts of its research and activity logs in order for the evidence submitted by the appellants to fall underneath the threshold of torture; the Court, ruling the methods of interrogation were cruel and unusual punishment, in violation of article 3 still, did not make a finding of torture. Somehow, such an outstandingly infliction of suffering, not being an absolute in nature, did not carry the same weight, did not yield the same outrage, did not demand the same amount of responsibility. There is no impunity for a violation of Article 3, but that threshold, thus manufactured by a partial look at a complex picture comprised of state control of colonized territories and the irrational fear provoked by terrorism, seemed to somehow help the British government escape the obligations resting upon it for perpetrating acts of torture, namely, the prosecution of those responsible.

The broadcast of “The Torture Files” on Irish public channel RTE led to an awkward dance between Dublin, London, and Strasbourg, the complexity and political meanderings of inter-state cases being weighed down even more by the unwillingness to provoke any form of conflict in Northern Ireland, “rock the boat” in a way that could be perceived to jeopardize a hard-won, fragile stability. Uncovering a lie, no matter how blatant, has the potential to rattle, to unsettle, to generate mistrust. In the face of the abuses that have been committed between 2002 and 2009, and constantly threatened to reemerge by political candidates capitalizing on fear, disclosure is not only essential – it remains an obligation. Appearing before an international court which duty is to examine the degree to which domestic investigations are satisfactory should be in itself a signal that the rule of law has been coopted in the name of political power, corrupted by an executive necessity that the court exists to curb. Lying before the ECtHR is not just disregard for the most fundamental of obligations; when it comes to the absolute prohibition, it constitutes more than negative inference. It is obstruction.

Are there any consequences?

Beyond monitoring the implementation of the Court’s judgments via the relevant committee, it is difficult to assess whether the existence of such a jurisdiction has enough of a deterrent effect against human rights abuses committed in the name of counter terrorism. The political impact of possibly violating understandings and otherwise enshrined intelligence relations far outweighs the legal consequences of breaching the prohibition of torture; the argument of necessity, constantly debunked and dismantled by observers but always influential, seems somehow still opposable to fundamental rights. As the threat of terrorism comes and goes like the tide in a rapidly evolving world, as international law seeks to catch up with modified conflict paradigms, the trend is to separate the concept of national sovereignty from that of supranational accountability, to supersede the right to self-defense, to create a considerable and unbridgeable difference between intelligence activities and judicial transparency.

The outrage provoked by long lasting claims in the United Kingdom to withdraw from the Convention and a recent bill passed by the Duma to reserve the state the right to ignore the Court’s judgments is not enough. Education about the role of the Convention, its place in EU history and construction, the systems it implements and the political relations it has spurred and governed is paramount. Most importantly, it is not necessarily the Convention as an instrument, but education about human rights as a whole, the reasoning and faith behind the prohibition of torture, the evolution behind installing it as the unjustifiable crime, and the values that tie us together as an international community that can ensure the perennial role of the Court’s judgments against torture. The transparency that comes with an investigation requested under the right to a fair trial and the obligation to adjudicate will continue to shed light on why such work is crucial, essential for the respect of human rights worldwide.

The war on fundamentals: UNSC Res 2286

Very few question whether the concept of a just war is appropriate or necessary. There are the pacifists, those who believe that war, intrinsically, goes against humanism. There are the pragmatists, who argue intervention can be justified. There are the realists, who contend that no nation state can survive without entering a state of conflict at some point in its cyclical history. There are the opportunists, for whom war is merely a means to an end. Whether war can be just, whether war can hereby be justified, approved, and conducted in a certain manner has been left to legal philosophers, the authors of conventions. Those conventions have evolved with time, with an ever-changing political landscape, but most importantly with technology. Certain principles however have not changed, and should never be the subject of compromise. They are fundamental in nature, and are currently under attack.

Operation Protective Edge, the name given to the 2014 Israeli assault on Gaza, signalled a new low in warfare. In the name of said protection, Israel killed over a thousand civilians, a third of them children. Images of scattered young body parts on beaches made the cover of newspapers. Accounts of dead bodies stored in ice-cream freezers for lack of burial capacity, appeared cautiously next to Israeli arguments for the necessity of the attack: stories of children turned into the most feared individual of the year, the military aged male, of the danger posed by Qassam rockets fired from United Nations schools and hospitals, of relatively small numbers of Israeli casualties, could not erase the atrociously disproportionate response to a threat always imminent but never factually existential. Journalist Max Blumenthal walked among the ruins of Shujaiyah, and provided a harrowing testimony of the profound disdain for human life that he witnessed that summer. One specific night comes back to the forefront: in the darkened Gaza night, among the low hum of a few remaining electrical generators, missiles screeched through the sky, and fell on the buildings left standing. Two years later, Gaza is still under attack; reconstruction has barely started; children under the age of 12 suffer from post-traumatic stress disorder; young boys try to commit suicide. The tears of a UN official, on TV, captured worldwide attention. Gaza had become the untouchable strip of foreign land; it had become a frontier behind which everything was fair game, every human body fit to kill; it evaded and escaped not just humanitarian law, but also emergency humanitarian relief and the principles of humanitarian access, hindered not just by Israel, but also by Egypt. Gaza was located beyond the protective edge.

Three specific types of putative war crimes have reemerged in recent years, attributed, depending on who one asks, to the changing nature of conflict – the proliferation of non international armed conflicts, the growing number of non-state armed groups – or the changing nature of political and legal commitment to the laws of war.  The danger lies not only in asserting that the fundamentals of the laws of war no longer apply; it lies in removing them from the legal framework, hereby leaving a gaping hole where protections should apply. International human rights law would not suffice; areas where the two paradigms do not overlap, specifically the threshold of the right to life, would lead to rampant abuses. Those abuses have however already taken place. From the bombing of hospitals in Afghanistan and Yemen; from the assimilation of civilians to combatants due to sole demographics; and the resurgence of medieval methods of collective punishment, now, perhaps more than ever, is the time to reaffirm commitment to the fundamentals of the law of war, their blood-stained roots, and perhaps demand more of the Security Council than the base expectations. Of the five permanent members of the revered institution, three are currently assisting a country accused of war crimes; one has consistently used its veto against humanitarian assistance; another used this same right of veto against its twin body, the Human Rights Council’s demand for independent investigations into possible war crimes. Four are currently involved in proxy in the deadliest conflict since World War II. Perhaps the laws of war are not obsolete, relics of a bygone pacifist age, impossible to implement, or incapable of evolving with military technology. Perhaps what the Geneva Conventions need is a body entrusted with keeping peace and security actually vested in peace and security as opposed  to its own financial and/or political interests.

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Attacks on hospitals: Afghanistan, Yemen, and the threshold of intent

Nothing has perhaps highlighted the blatant violations of fundamental humanitarian principles than the October 3, 2015 attack on the MSF-supported hospital of Kunduz, in Afghanistan. While the fighting was raging between the Taliban and the US-supported Afghan army, MSF doctors and surgeons were working tirelessly in the hospital, which coordinates had been communicated with the belligerent, to tend to the wounded, children and adults alike. A blast at 2am led to frantic phone calls to the headquarters of the coalition to communicate that a missile had fallen on a hospital, a protected building. An account of what followed in the early hours of that fateful day is nothing short of blood-curdling. Dr. Kathleen Thomas told The Guardian:

But tomorrow never came for most of those patients. Nor did it come for most of the ICU staff working that night. When the US military’s aircraft attacked our hospital, its first strike was on the ICU. With the exception of one three-year-old, all the patients in the unit died. The caretakers with the patients died. Dr Osmani died. The ICU nurses Zia and Strongman Naseer died. The ICU cleaner Nasir died. I hope with all my heart that the three sedated patients in ICU, including our ER nurse Lal Mohammad, were deep enough to be unaware of their deaths – but this is unlikely. They were trapped in their beds, engulfed in flames. (…)

Our colleagues didn’t die peacefully like in the movies. They died painfully, slowly, some of them screaming out for help that never came, alone and terrified, knowing the extent of their own injuries and aware of their impending death. Countless other staff and patients were injured; limbs blown off, shrapnel rocketed through them, burns, pressure-wave injuries of the lungs, eyes and ears. Many of these injures have left permanent disability. It was a scene of nightmarish horror that will be forever etched in my mind.

Dr. Thomas’ account is one of many survivors’ stories that have scarred the public opinion. Atypically, US authorities decided to launch an investigation into the strike, that had killed 42 people that day, staff and patient alike. Photos of the damage done to one of the few hospitals left standing in the region were breathtakingly horrific. There was no escape from the dust and rubble; it would however be the first of many outraged and infuriating moments for Doctors Without Borders, a fearless, deeply respected organization that was told by the local head of the NATO coalition, “I will pray with you all” before the second blast hit.

But the investigation yielded little to no result; MSF decried the fact it had been conducted by one of the parties accused to be responsible for what amounts to a war crime. Indeed, the US exonerated itself of any war crime accusation by claiming the threshold intent had not been met. In the Guardian still, Spencer Ackerman writes:

At the Pentagon, Votel said the strike did not rise to the level of a war crime since striking the hospital was not an “intentional act” – something John Sifton of Human Rights Watch called “simply wrong as a matter of law”.

Interviews with Kunduz residents and relatives of the victims indicate a belief that the US purposefully targeted the hospital. Some rejected the commander’s apology as insincere and urged harsh punishment for the perpetrators.

Votel, a former special operations commander, said the investigation determined the hospital never served as a staging ground for attacks by the Taliban, nor did any enemy fire come from the hospital, as MSF has long said and in contradiction to Afghan officials.

The narrative on Kunduz shifted so many times that, unless an independent investigation is carried out, little will be known of the exact conditions of the multiple strikes that devastated a MSF-supported hospital, and those of Shiara in Yemen on January 10, as well as the destruction of Al-Quds pediatric hospital in Aleppo on April 28. The level of intent with which the US military attacked the wrong building, as the Pentagon report laid out, is not clear. Whether this is a war crime is not, to this day, entirely clear. That is because the criteria of intent for the law of armed conflict differs. For US authorities, there is no war crimes because the killing of civilians – and the targeting of a civilian building – was accidental. If there was no purpose of attacking the building, then the responsibility lies within the knowledge portion – a violation of the principle of distinction. This is where MSF differs with the Pentagon assessment: they maintain all belligerent parties knew of the location of the hospital; that phone calls had been placed after the first missile hit to inform the NATO coalition that they had hit a hospital; in spite of all these efforts, the bombing did not cease. A battle of wits between Jens David Ohlin and Kevin Jon Heller offers a conversation on the level of intent that doesn’t blur the lines as much as it blurs the possibility of accountability for Kunduz. Despite the chain of awful errors outlined by the Pentagon report, there is still much to debate on whether the intent threshold for a war crime was met. After a priceless argument on the two material elements of intent – conduct and consequence – Heller concludes:

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Kunduz will therefore add itself to the pile of incidents in which the responsible party never intentionally attacked civilians, denounces the presence of civilians, refuses independent investigators access to determine the civilian status of the deceased or the attacked object, or, worse yet, claims the civilians killed were not even civilians in the first place. Initially, US authorities had claimed Taliban had taken up post in the hospital, firing at Afghan soldiers. In Gaza, the Israeli Defense Forces claimed that Hamas members were hiding inside UN schools, firing rockets from over the heavily guarded borders. It took months to establish evidence of the presence of military objects in UN offices in Gaza; MSF has strongly denied that any weapon had been lodged or hidden in the hospital. In Syria, the damage on Al-Quds, which also killed one of the last pediatricians left in the city, is again on a long list of possible war crimes committed by all parties to the conflict. In Afghanistan, the longest war ever waged by the United States, accountability has always been thin. In Yemen, countries assisting Saudi Arabia in its assault against the destabilized and feudal nation raise their hands in the air, insisting their help is only logistics.

For Afghanistan, for humanitarian organizations such as MSF, this lack of established liability due to lack of effort, or willingness, to investigate, means not just a lack of accountability, but impunity. In the aforementioned Guardian piece, the belief that the US targeted the hospital on purpose is spreading like wildfire – and could have devastating consequences:

The anger may stem from a widespread belief in Kunduz that the US military targeted the hospital on purpose. Nobody the Guardian spoke to seemed to believe that a military with such sophisticated equipment and surveillance would mistake a hospital.

“I don’t know why they targeted the hospital, but there were white Taliban flags on all the buildings around it, so why didn’t they target them?” said Hamdullah Salarzai, a worker at the hospital who was injured in the attack, and whose uncle, Aminullah, was killed.

As of the date of publication of this piece, there is no other planned investigation into the attack. The matter was further complicated thanks to an in-depth, on the ground investigation conducted by reporter Matthieu Aikins for the New York Times which leads to the conclusion that Afghan forces deliberately misled their American allies, targeting the hospital due to mistrust of MSF’s duty of neutrality. This is perhaps even more sombre than any contingency: the very principles underlying the fundamental protections of war are now perceived and interpreted as, in fact, taking sides, protecting belligerents over the fate of others. In this specific case, MSF, seeking to build and practice from remote, Taliban-held areas, were seen by the Afghan forces are taking the side of the Taliban, tending to their wounded the way they would their own soldiers, civilians, or other members of coalition forces. This is however what the humanitarian duty of neutrality, that MSF has always maintained even in the face of litigation possibly benefiting them, and what they ought to maintain at all costs. The level of distrust of any foreign intervention even for humanitarian purposes has become a fixture of the war on terror, in which the paradigm has shifted from what we believed was acquired and safe to utter uncertainty and unreliability, even to the extent of questioning what the protection of civilians could be – when one does not know who is considered a civilian.

Attacks on civilians: the end of by-default protection

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The undeniable consequence of 15 years of the so-called war on terror was the redefinition of concepts we had come to think as familiar, of ideas that we had firmly held as self-evident, and of the respect of legal requirements that we, as an international community, lawyers, journalists and activists alike. The most contested and controversial one is the persistent myth of the “military-aged male”, any target fitting those vague and broad criteria that determine that they could very well be militants, and not civilians. Of course, the requests that belligerent parties were identifiable uniforms allowing observers to identify them as military, and therefore legitimate targets, could no longer apply and/or become a receivable argument for the proliferation of non-state armed groups in the conflicts emerging in the 21st century. Increasingly, battlefields became centers of guerilla warfare, those very same battlefields were also not always officially declared as such, turning rules of emergency applicable to the troops deployed in the area difficult to obtain, if at all, and remaining malleable due to the ever changing nature of the landscape. As a result, even with the rapidly changing surveillance technology, that has made considerable strides in the last decade, could not always determine with a degree of certainty that was reliable enough, whether a given individual in a crosshairs was a civilian or a belligerent.

As a result, the determination often became circumstantial or contextual. With the development of surveillance drone, the rapid fluidity with which signal intelligence is exchanged and stored between preferred partners, the pattern of a given situation emerges with better clarity than it would have in the days of counter-insurgency and counter-terrorism at a time when recruitment of informants – and hereby the use of human intelligence in addition to phone tapping – was the only way to obtain an incomplete but verifiable picture of the insurgent group in the crosshairs. In the absence of several layers of verifications, or missing information on the direct, immediate identification of a civilian, often on the move, the decision was based on contextual information: the company the individual kept, the nature of his presence in the area, but most importantly, the area itself. An area under heavy counter terrorism scrutiny and chosen as a battlefield of intense value – such as North Waziristan, at the border between Pakistan and Afghanistan – the difficulty to identify a local tribal elder from a Taliban leader became impossible for US forces, so little was the cooperation on the ground, so eager were they to strike, that it was decided as a matter of policy that a “military aged male”, meaning 19-60, and male, able-bodied, could possibly be a recruit of a local or global terrorist or insurgent organization – hereby becoming a target solely due to the fact that violent activity was recorded in the area; this sounds more like guilt by association, than it is averred risk assessment before a strike peddled as so surgically precise it considerably reduces the odds of a knowingly unlawful strike. This slides from the civilian-by-default of the Geneva Convention, in which no one easily identifiable as a belligerent had to be protected until further information or investigation could determine its status; it became the default status for may young and less young men in those non-declared battlefields, in areas were intelligence was difficult to gather, but where the necessity to ask took precedence over caution.

An excellent illustration of this issue is Operation Haymaker, a two-year campaign in the Hindu Kush to destroy elements of the Taliban and Al-Qaeda between 2011 and 2013. Analysis documents he obtained, national security reporter Ryan Devereaux takes a close look (1) at the elements that, together, form the larger picture of a targeted killing program that has resulted in more non-combatant casualties than the concept suggests and puts forward. The confidence resulting from the appeal of being able to select and identify a specific target then removing them from the battlefield – by capturing them but, more often than not, killing them – has formed in large part the presumptive successes of the war on terror. The determination of the status of those casualties is left to intelligence and military sources, in a situation in which independent verification is close to impossible. By February 2013, towards the end of Operation Haymaker, Devereaux says thirty-five “jackpots” – the actual target – had been reached, with over two hundred others, not directly identified, were also killed, dubbed “enemies” without further additional information.

In the complex world of remote killing in remote locations, labeling the dead as “enemies” until proven otherwise is commonplace, said an intelligence community source with experience working on high-value targeting missions in Afghanistan, who provided the documents on the Haymaker campaign. The process often depends on assumptions or best guesses in provinces like Kunar and Nuristan, the source said, particularly if the dead include “military-age males”(…) Certainty about the death of a direct target often requires more than simply waiting for the smoke to clear. Confirming that a chosen target was indeed killed can include days of monitoring signals intelligence and communication with sources on the ground, none of which is perfect 100 percent of the time. Firing a missile at a target in a group of people, the source said, requires “an even greater leap of faith” – a leap that he believes often treats physical proximity as evidence.

This is not a problem solely confined to US drone warfare. Israel’s assault on Gaza has often referred to hordes of Hamas fighters invading UN-run schools, UN-run hospitals and other protected buildings; Gaza, the most densely populated area in the world, also its youngest, could then be flooded with recruits – or potential recruits, which would justify a preemptive strike – and become justifiable and legitimate targets. We are seeing the end of non-engagement; the end of hors-de-combat; women and children become fair game. In the name of an overwhelming principle of precaution, preemption takes over determination, and targeted killing becomes led by a threshold of near certainty heavily contested by legal organizations, but most importantly, the targeting system itself has revealed itself flawed despite the combination of both evolving HUMINT and SIGINT, with the reliability of what was deemed actionable intelligence put into question through heavy meddling of intelligence agencies, the lack of definition of terrorism, the opacity of the legal policy of the targeted killing, and in the case of the UK, the complete absence of a reliable chain of command upon which lies the burden of making a decision that could very well later amount to a violation of the right to life.

The Geneva Conventions, however, remain clear. They also belong to an era where soldiers wore uniforms, where guerilla warfare was contained to small, localized insurgencies, where wars were fought on frontlines, trenches, and other clearly visible areas. By extending a battlefield to any place where a KST might be, the war reached civilian structures, facilities, protected personnel and other non-targetable objects. Not only are clear, known targets difficult to pinpoint regardless of the advancement of technology, but deliverance of ordnance through the air carries an inherent risk of additional casualties. International humanitarian law does take it into account; what is at fault here is the immediate and uninformed classification of those collateral bodies as enemies, legitimizing every aspect of the strike, endorsing the targeted killing program as a flawless, surgical weapon of war that, instrinsically, makes the extension of the war zone both lawful and legitimate, because necessary and proportionate. Advocates of a reform of IHL that would fit the paradigm of the war on terror seem to consider that this end of default protection of civilians – an acceptance of an enemy status automatically extended to whomever happens to be in an area. By Devereaux’s conclusion, confirming the death of a target is difficult; assessing the status of a casualty can be just as difficult. The advanced destruction of the bodies hit by missile, often charred beyond recognition, make a positive identification by the family impossible, or have their word be weighed against the impossibility of scientific determination. It isn’t that the law is inadequate, doesn’t adapt to the new context of counter-terrorism. It’s that the convenience of giving in to the utmost secrecy of an intelligence-led operation prevails over the demand for accountability.

The myth of disarmament

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The 71st General Assembly of the United Nations will open on September 13th in New York City, with an agenda largely focusing on peace and security, the spectre of several wars leading to unprecedented humanitarian crisis looming over the large building dominating the Upper East Side. The damage caused by those wars was, to some extent, preventable. The horror wrought upon Syria and Yemen is compounded by paralysis for the former, and profit for the latter. If the situation in Syria is extremely complex and deserves an essay of its own, addressing disarmament without addressing the facilitation of potential war crimes in Yemen would risk unsubstantiality. As of right now, the coalition led by Saudi Arabia aiming at “restoring legitimacy” in Yemen following the overthrowing of the government by the Houthis has displaced millions of civilians, left just as many without access to food or basic aid, and the constant bombing of medical facilities pushed MSF to pull out of northern Yemen entirely.

Saudi Arabia could not wage this war alone. The kingdom does not manufacture weapons; it relies on arms imports for everything from fighter jets to missiles, and has become the first beneficiary of arms transfers for 2015. Generating relevant databases via SIPRI (the methodology of which can be accessed here) shows a very disturbing picture given the extent of the carnage in Yemen. It also considerably illustrates the issue of the Security Council’s inaction over the two-year conflict, trapped between the responsibility of being a permanent member and the significant domestic profit that can be ramped up by war.

The role of weapons manufacture and arms transfers has been denounced as early as late 2014 by anti-war organizations. In two countries specifically, the UK and Canada, the issue of the efficacy of the application of domestic legislation regulating arms trade has been raised by Amnesty International over the alleged war crimes in Yemen. Two reports detailing the destruction of civilian facilities have been released, leading to calls for suspension of arms trade with Saudi Arabia. It is difficult to argue for the respect of human rights when arms trade is so profitable for states. France, for instance, struggling with national debt, has closed a contract worth €3bn with Saudi Arabia; codenamed DONAS, the contract concerns the proxy arming Lebanon, paid for by the kingdom. Canada has modified its own regulation methods in order to balance it with what leadership considers it to be national interest, helping current Prime Minister Justin Trudeau to accept a $15bn deal at the peak of the horror in Yemen.

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Database generated on SIPRI on August 20, 2016: top 10 arms suppliers, numbers in trend-indicator value, the TIV, known production cost of the weapons instead of core financial value.

From this table, we can see the top 5 arms suppliers in the world consist in 4 of the 5 permanent members of the Security Council, in charge of maintaining peace and security. The 5th member is listed close, taking the 6th spot. While the United States is far, far ahead of its cohorts, it is striking that the world order is left in the hands of those who have more to profit from war.

Disarmament has been a long standing goal of the United Nations, and first focused on nuclear disarmament, which continues to be underway and has taken a considerable step forward thanks to the diplomatic negotiations around the Iran deal. The regulation of other types of mass and non mass destruction weapons is now covered by the Arms Trade Treaty, which entered into force on December 24th, 2014. For the United Nations, regulation of arms trade is a core principle to prevent humanitarian crisis and uphold the protection of civilians in war:

Inadequate controls on arms transfers have led to widespread availability and misuse of weapons. One serious consequence: the disruption of life-saving humanitarian and development operations because of attacks against staff of the United Nations and other humanitarian organizations. In many areas of work, the United Nations faces serious setbacks that ultimately can be traced to the consequences of the poorly regulated arms trade. We see weapons pointed at us while maintaining international peace and security, in promoting social and economic development, supporting peacekeeping operations, peacebuilding efforts, monitoring sanctions and arms embargoes, delivering food aid or helping internally displaced persons and refugees, protecting children and civilians, promoting gender equality or fostering the rule of law. That is why the adoption of the Arms Trade Treaty is so significant for the UN system as a whole.

Because not every arms transfer necessarily falls short of regulation, let alone is in blatant violation of domestic and international regulation, a closer look at the obligations resting upon states having ratified the ATT sheds a light on the situation of Yemen and the persistence of arms trade with nations known or suspected to commit war crimes. An implementation toolkit, released for states about to ratify, includes various modules, the fifth one concerning the prohibition of transfers. The first two sub-categories regard the prohibition of transfers to states under UN-imposed embargo; the second, on illegal trafficking; the third one finally tackles transfers despite knowledge of the use of those weapons to commit grave breaches of the Geneva Conventions:

Where a State Party has knowledge, at the time of the authorization, that the items subject to a transfer authorization would be used to commit genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party, the State Party must prohibit such transfer.

If it authorizes the transfer, the State Party would not only be in non‐compliance with the ATT, but it could also be responsible under the law of state responsibility for aiding or assisting in the international wrongful act. Article 16 of the Articles on Responsibility of States for international wrongful acts provides: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State”.

Canada, mentioned above as having modified domestic legislation in order to facilitate the transfer of arms to Saudi Arabia, is not a state party to the ATT (it is currently seeking to accede it, after previous Prime Minister Harper refused to sign in 2013). The United States has signed the treaty, but has not ratified it. France was among the first 54 state parties praised by the General Assembly. In the United Kingdom, also a state party, an investigation has been requested from the Ministry of Defence (MoD) in order to evaluate how much was known by British authorities of the use of those weapons by Saudi Arabia at the time of transfer; how much had been communicated by Saudi Arabia as to how those weapons would be used; and how the MoD had assessed news reports of war crimes allegations knowing arms transfers were pending.

The ATT’s prohibitions on transfers seem self-evident, but require several factors of investigations from state parties that are perhaps deemed too complex to comply. The political interests of a state party seem to prevail over its legal obligations under international law. A parliamentary debate taking place in June 2016 in the House of Commons considering the suspension of arms transfers with Saudi Arabia has led to this statement by conservative MP Sir Alan Duncan:

The thing about Yemen—the hon. Lady did not mention this at all—is that we are in conflict for a reason. The conflict started because a legitimate Government were displaced by highly armed Houthi rebels who had raided heavy weapons stores and used those weapons against the legitimate Government. They pushed them out of Sana’a and headed down towards Aden. The hon. Lady did not mention the human rights violations committed by the Houthis. They have rounded up teenagers, put them in rooms and blown them up (…) There are very different sorts of weapons. In Yemen, every teenager has a rifle on their shoulder. That is the sort of country we are dealing with. I question the hon. Lady’s bold assertion that there has been deliberate targeting of civilians. That is a very serious accusation.

The debate later continued, from the opposition side of the bench,

It is clear that the UK Government will not conduct their own investigations into the issue. That was confirmed on the BBC World Service in an interview with an MOD official, who said:

“We are not launching an investigation”.

I have written to the Prime Minister to ask what the position is. Are we having an investigation, or are we not? I am waiting for a response from both the Ministry of Defence and the FCO on this matter. There is absolutely no doubt that the evidence suggests that this merits an investigation. I simply do not know what the Government are waiting for to justify that.

It will require more than just one state to suspend arms transfers to Saudi Arabia to help stop the terrifying onslaught on Yemen. Not one state is entirely responsible of being in violation of regulation. Generating a database on states providing Saudi Arabia with weaponry provides a similar, but more complex vision:

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Database generated on August 20, 2016, exports to Saudi Arabia, 2014-2015, expressed in TIV via SIPRI.

Despite five exceptions, exports to Saudi Arabia have increased from 2014 to 2015; the war intensified, violence increased, the humanitarian disaster revealed figures that “dwarfed Syria’s”. A long, detailed analysis by reporter Samuel Oakford details the dysfunction and hypocrisy to the US and Saudi Arabia deafness to calls to respect international law. And why would they: there is virtually no attempt that could be remotely successful at enforcing any resolution. Responding to MSF’s withdrawal from northern Yemen, Saudi Arabia commented to Reuters that they “deeply regret” the move, feel “concerned” and “appreciate” the work the leading humanitarian organization has carried out for the Yemeni people – without mentioning they have been performing it under considerable strain and danger, recording unsustainable losses. Saudi Arabia is operating outside of any framework applicable to any other member state; is fully aware of the impunity somehow extended to its actions – and can afford to release statements to the press about seeking to reach out to MSF to help them maintain the operation centers they have themselves bombed. Earlier, writes Oakford,

In September, as the civilian toll in Yemen continued mounting, Zeid had called for an independent, international inquiry into the conflict. At the Human Rights Council in Geneva, Dutch representatives introduced a resolution that would have created such a body, only to see their support melt away in the face of intense pressure from the Saudis and their allies. Instead, the council passed a Gulf-authored resolution endorsing a national investigation controlled by the exiled Hadi government. That inquiry was widely seen as biased and unequipped, and moreover had no access to most of Yemen.

According to diplomats, the U.S. was largely quiet during negotiations over the text, allowing the Saudis to bully the Netherlands—literally sitting with them at a coffee table and crossing out sections of the resolution the U.N. human rights chief wanted.

The Arms Trade Treaty is a strongly worded covenant that has been long in the writing, and in enforcing. The commitment to disarmament, a core principle of the United Nations, that had an opportunity to cease being an unattainable dream at the end of the Cold War, feels strained in an increasingly polarized world, a vision of western political leadership conflated with the use of force, a wave of regime change in the Middle East – the Arab Spring – that has led to either fragile stability or military rule, the constant presence and expansion of terrorism, and the slow realisation that collective security had always been seen through the prism of national interest. While incendiary weapons engulf Syria and burn it to the ground, while photos of young children carrying heavy artillery circulate from Yemen, Turkey builds cemeteries for traitors and Russia enforces a parallel narrative on its non-presence and non-action following its non-annexation of sovereign territory. More than ever, the United Nations has been facing the test of whether it was capable of enforcing peace and security. More than ever, the United Nations becomes a sum of its member states’ parts, instead of an autonomous supranational organization. The Security Council can not vote on an arms embargo to Saudi Arabia while every single one of its permanent members are directly cashing the financial rewards of arms transfers, civilians be damned. War has come to define the institution more than peace and diplomacy ever did.

When we fail to protect

The legitimacy of the United Nations is being increasingly questioned in activists’ circles; the self-preserving ways of the super powers is being criticized during general assembly, with nations from Africa and Asia seeking access to seats of power they do not deserve to share on a rotating basis due to a world order that is over 70 years old. The two main organs, the Security Council in New York and the Human Rights Council in Geneva, appear to be at odds over the constant gridlock that was illustrated in the latest Gaza war. The passing of UNSC Resolution 2286 is one of those instances when the strong wording and the reiteration of commitment to basic principles rings even more shallow in the face of the conflicts that are perpetuated by the states represented at this very council. The question of whether the Security Council continues to embody shared, common values is now all over newspaper, justifiably arguing that the post-war supremacy of the organization has outstayed its welcome.

There is much the UN can do. The politicization of human rights and the struggle between national interest and collective security are not new concepts, new issues, new empirical political and legal conflicts. Just like everywhere else, the role the UN plays on the international scene is best exemplified by its leadership. In 2014, shortly before the end of her term as High Commissioner for Human Rights, Navi Pillay  issued a statement of significance on the role of the Security Council at a time when the worst conflicts of this year were emerging, and global chaos already felt endemic. Her interpretation of this specific climate of conflict was clear: it was in part due to the inaction of the Security Council.

The Council’s interest in human rights has increased markedly during my tenure. But despite repeated briefings regarding escalating violations in multiple crises – by OHCHR and other human rights mechanisms – there has not always been a firm and principled decision by Members to put an end to crises. Short-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of – and long-term threats to – international peace and security. I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives.

The role of member states within the UN apparatus must be understood through a realist perspective. It is evident that the global ideology that holds the organisation together is a western one, and those shared values around shared legislation that has been drafted and enacted by those member states. The universality of human rights may be questioned not in their principles, but in their enforcement, in the application of accountability, in the consistency with which we, as an international community, denounce violations of human rights as they occur. But self-preservation is a much bigger instinct, and alliances form at the UN the way they form everywhere else, in turn preserving a status quo supposed to be dismantled or at least challenged by the very institution sustaining it. In a scathing criticism of UN shortcomings, Dr Rosa Freedman writes that (2), because Global North country retain considerable control of UN human rights bodies, it also controls the positions and decisions those bodies are tasked with undertaking.

While that slowly is changing, with more independent experts coming from universities from other regions, and indeed from NGOs and private practice, the imbalance still remains. (…) The legal and political infrastructure more clearly reflects Western ideologies than those of Eastern Europe or beyond. This frequently assists the US when it comes to scrutiny by those experts. Russia and China, then, rely on greater number of allies while the US relies on stronger allies who are better equipped to navigate the UN infrastructure. The end result is the same. All three countries are protected from UN action despite committing serious human rights abuses. Realist power-politics win when it comes to the most powerful states. Their might on the world stage affords near-impunity when it comes to violating human rights.

This system of alliances is exactly what Samuel Oakford exposed as having been practiced by Saudi Arabia. The position of the UN Secretary-General, Ban Ki-moon, has been to finally come clean about the interference, stopping short of calling it illegitimate, and seeking to remove Saudi Arabia from advisory panels in which they would be in position to directly influence decision-making. But this, assuming it could be done, would not end the reign of financial dominance that plays in bilateral relations between nation-states that translates into UN backchannel deals; if former High Commissioner Navi Pillay ended her farewell speech by demanding adherence to the Arms Trade Treaty, violations of its terms by any state party must be followed by immediate investigation of the circumstances in which the obligations were breached, and referral to the competent jurisdiction. There is no reliable assurance that this would be performed. Dr. Freedman continues,

Comparing the most powerful countries with the ‘pariah states’, such as Israel and apartheid-era South Africa, demonstrates how world politics is crucial when it comes to the UN protecting and promoting human rights. The same power-politics than enable disproportionate scrutiny of some countries also allow powerful states to continue to behave as they wish. Unlike Sudan and even Italy and Greece, the most powerful countries do not need to provide excuses or justifications for their violations. Instead, their positions of power protect them from scrutiny and from any action being taken by UN human rights bodies. While the UN is mandated to protect rights across all member states, one might be forgiven for thinking that the most powerful countries commit violations that require UN action.

By reinforcing the legitimacy of non-elite positions, by supporting the work of independent experts, and by shaming permanent members of the Security Council can we end this reign of impunity – but the enforcement of the rule of law must either shift away from the Council, or demand reform of the Council. Either way, the last three biggest conflicts that resulted in the worst possible form of horror for civilians were a failure of collective security, a failure that has come to define our current era.

 

(1) In The Assassination Complex, Jeremy Scahill and the staff of the Intercept, pp. 156-157. 2016.

(2) in Failing to Protect, Rosa Freedman, pp. 94-95. 2014.

Article 51 and the convenient use of the self-defence argument

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British Reaper drone

 

Targeted killing and signature strikes have become the preferred counter-terrorism method, facilitated by drone warfare and increasing in numbers from 2009 onwards. We are far from a legal consensus, however: article 51 does not provide enough for states to rely upon as a clear interpretation. The fight against terrorism and the role of the Security Council in providing support to states taking the fight where terrorists are, in response to an ever expanding threat, has turned from a relative ban on the use of force to restraint being the exception. Professor Christian Tams, writing on self-defense for the European Journal of International Law in 2009, claims:

More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.

The danger here is for states to use Article 51 loosely. To simply consider it as a obligation to inform the Security Council that a strike had been launched, that had resulted in casualties, and that internal reports had deemed lawful. While targeted killing has long been a preferred counter-terrorism method, Philip Alston, the UN Special Rapporteur on extrajudicial executions, mentions it involves “the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.

On August 21st, an attack carried out by a Reaper drone taking off and controlled from unknown location(s) launched a missile on a vehicle in Raqqa, Syria. Two British citizens were killed, Reyaad Khan and Ruhul Amin. It is said that the target of the strike was Khan himself, not Amin, and that the UK acted on intelligence that “required a quick response”. In a letter to the UN Security Council dated September 8th, the UK informs the UN that it is invoking individual self-defence under article 51 of the UN Charter for this strike. Cameron, a week later, defended the position: “We took this action because they was no alternative. In this area, there is no government we can work with.”

On September 27th, six jets, five of which being French Rafale, bombed a fenced building near Deir Ezzor in Syria. The camp in Deir Ezzor was completely destroyed, and, according the Syrian Observatory for Human Rights, resulted in 50 casualties, including foreign fighters from the Maghreb, but also 12 child soldiers. On October 8th, France carried out a second strike, near Raqqa. The target would be French citizen Salim Benghalem, though the claim was not confirmed by the French government.[1] According to reports, the recruitment leader would still be alive. No information has been publicly released by the French government on the intelligence leading up to the strike or the identities of those who were killed. Still, France invoked Article 51 of the UN Charter under collective self-defense.

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In October, Russia released dramatic drone footage of battles in Damascus amid a propaganda drive.

The issue here is who the target of those strikes are; they are foreign fighters, supposedly one day coming home to bring the jihad to European soil. Whether the targets are who states say they are, whether their activities constitute what states say they do, and whether those camps are hosting what states say they do is a matter that no one can entirely verify. The letter from the UK to the UN reads as follows (emphasis mine):

On 21 August 2015, armed forces of the United Kingdom… carried out a precision strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling. This air strike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.

The worrisome trend is that states participating in this makeshift coalition against ISIS terrorism all act in self-defense, everywhere, all the time. The issue of foreign fighter recruitment has terrorized both France and the UK, the latter constantly repeating that the island has never faced a greater threat in its entire history –that encompasses three decades of IRA bombings. This is pre-emptive self-defense, the most ubiquitous yet legally dubious concept used in the war on terror.

In the absence of clear, declared identities of the targets – let alone any information about their activities – the legal justification for preemptive action starts to unravel. If it has become customarily accepted that the war on terror is more than political rhetoric, but actually provides a war paradigm for action, the distinction between combatants and non-combatants still applies under international humanitarian law. ISIS fighters, if clearly identified as such, do constitute combatants, but their immediate or imminent threat to the state carrying the strike under self-defense is not clear. In 2003, a policy paper authored by Lt. Col. Westphal for the US Army War College warned that the policy would place the US at risk of seeing its retaliation delegitimized, and placed under scrutiny:

Although preemption is a legitimate use of military power, it may not be in the best interests of the United States to establish preemption as the universal principle of all nations. There must be a clear and unacceptable threat to a nation and the world prior to conducting preemptive strikes. Anticipatory military attacks to forestall or prevent hostile acts by our adversaries will come under greater scrutiny, review and challenge to ensure that the preemptive strike was necessary. Any unjustified use of preemption will lead to world condemnation, sanctions and response within United Nations and world capability.

Later, assessing preemptive strikes as a security measure with great power of deterrence – as it takes the enemy “by surprise” – the concept of legitimacy as its source of support from the international community, as opposed to the legality of targeting combatants without due process or judicial review – Westphal urges restraint:

If preemptive strikes are not measured, or if the policy of preemption is not protracted, then U.S. credibility and the use of preemptive strikes as a deterrent will be minimized. The principle of legitimacy focuses on internationally sanctioned standards, as well as the perception that authority of a government to govern is genuine and effective and uses proper agencies for reasonable purposes. If the international community believes that the reason for conducting preemptive strikes is legitimate then the international community and the world will be generally supportive of preemptive strike use.

Le Monde’s article recalls a previous statement from French Foreign Minister Laurent Fabius claiming that strikes in Syria would have no legal basis. The french paper of record then asks the French government to be transparent, and prove the strike was conducted against a target that constituted an imminent threat. Across the Channel, legal NGO Rights Watch UK has launched a legal challenge against the UK government to obtain the legal opinion that had authorized the strike against Reyaad Khan. The skepticism is welcome, and should be permeating every branch of politics – from a rarely consulted Parliament to justifiably adversarial lawyers. But this level of scrutiny should extend to all uses of Article 51 strikes or else risk never to yield anything worth suspending the policy until further investigation.

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It is easy to flout legal obligations to justify the entire basis for the action when it relies on information that is inherently classified. Unless a legal challenge to the government is launched, it is impossible to know whether the executive has engaged in a justifiable use of force. Even under judicial review, the intelligence shared and submitted may not be accessible. In matters of counter-terrorism, we are required to trust that the action is necessary and proportionate – but proportionate to a risk we can not see, a threat we can not evaluate. The fact that states can, in the name of self-defence, kill their own citizens abroad in non-declared battlefields in which they are not expressively authorized to intervene should be more unnerving. On November 12, the US launched a drone strike near Raqqa aimed at killing Mohammed Emwazi, also known as ‘Jihadi John’. Emwazi is not yet confirmed as dead, and whether the strike will pose a significant blow to ISIS operations in Syria is yet to be known. There is no question that, for the extreme distress posed by ISIS execution videos, knowing Emwazi is no longer in position of killing is a relief. The question of whether it would be legally preferable to capture him and try him on UK soil has been solved: the context of the conflict against ISIS is a paradigm of war, in which Emwazi’s actions – and his participation in the execution of two other British citizens – have made him a legitimate target.

But for all the easily identifiable targets, those whose role within ISIS is clear and documented, there are countless others: nameless and often without bodies left to recover, who traveled with them. If legality and legitimacy only appear together in an ideal world of constant compliance, lack of the former yields the disappearance of the latter. Without judicial review for drone strikes conducted outside of the battlefield and on identified citizens, the precision of those strikes and their degree of accuracy, as well as the full picture of the intelligence that guided the lethal hand of the executive’s inherent right to the use of force, we may keep moving. But it remains uncertain that we’re moving forward.

[1] The article from Le Monde, authored by Jacques Foullorou, precises that the information on the intended target comes from his own sources ; later, questions posed to French Prime Minister Manuel Valls on the question of the target of the strike are not returned : « the Prime Minister refused, just like the Defense Minister did, to answer any questions. »

The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

The collective consciousness and the lingering spectre of torture

Col. Larry James, chief psychologist at Guantanamo, 2003; director of the Behavioral Science Unit at Abu Ghraib, 2004. Retrieved at Newsweek, August 2015

More than the release of the Senate’s “torture report”, one of the defining moments of the American public’s reaction to the CIA’s rendition, detention and interrogation (RDI) program was the moment the New York Times decided to stop using the euphemism of “enhanced interrogation techniques” to describe what was and is blatantly torture. Executive editor Dean Baquet wrote in August 2014,

The word “torture” had a specialized legal meaning as well as a plain-English one. While the methods set off a national debate, the Justice Department insisted that the techniques did not rise to the legal definition of “torture.” The Times described what we knew of the program but avoided a label that was still in dispute, instead using terms like harsh or brutal interrogation methods. (…) Over time, the landscape has shifted. Far more is now understood, such as that the C.I.A. inflicted the suffocation technique called waterboarding 183 times on a single detainee (…) Given those changes, reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

I was reminded of this while reading a piece called “Lives by omission” in the latest issue of Harper’s. J.M. Coetzee published exchanges with psychotherapist Arabella Kurtz on the parallels between fiction and psychotherapy. In this particular excerpt, they examine the process of repression, that Freud explained distinguished human beings from beasts. Coetzee writes, “What we gain in repressing what we do not want to remember we have to pay for with the subterranean poisoning of other aspects of our lives.” Later, he provides a torture analogy:

But is it true that repression necessarily fails? To give an extreme example, certain people who have committed vile acts – torture, murder – seem able to construct life stories (memories) for themselves out of selected fragments of the real (the long hours they had to work, the gratitude of their superiors, the promotions and medals  they received) and to live with and by such memories, while repressing all the ugliness. Classical theory, at least in its popular version, says that such people have unhappy relations with their wives and children. It says they suffer from nightmares. It says that they are secretly haunted by the cries of their victims – by what they try and fail to repress of their “real” past. And indeed, if you put a torturer on trial or if you compel him to undergo a course of psychic rehabilitation, he may begin to recollect those “repressed” cries.

If we see the construction of a personal narrative when committing “vile acts” – and there is no doubt that the operatives, government agents or contractors, that have taken part in the RDI program have committed vile acts – as a success of the psychological process of repression, it is difficult then to legally extract an individual responsibility for said crimes. Or is it? Yes, the gratitude of the superiors, the constant political rhetoric around the efficiency of torture, supposedly scientifically supported and pushed by legal celebrities such as torture-by-warrant proponent Alan Dershowitz – provide comfort, containment, and eventually, a levee against the perhaps inevitable wound inside the human psyche that remains after the crime, a wound that extends to the whole of humanity, as Dostoevsky expressed so well.

When Col. Larry James, former chief psychologist at Guantanamo, responded – reacted – to the APA motion banning its members from colluding with the CIA and the Pentagon on interrogation techniques, he did so by claiming the motion, the legal opinion of which I have written, holds “negative consequences”. In the APA debate taking hold before the vote, James asked:

So I need to know: Does international law supersede U.S. law? Because if the answer to that is yes, this has dire negative consequences for all federal employees, particularly in the VA and the department of homeland defense.

APA president-elect Susan McDaniel said the vote was to “reset our moral compass”. And yet, there is a continued willingness to push a narrative of efficiency and most importantly necessity from which a portion of the US public had started to distance themselves. Even the paper of record had a moment of reckoning with the ubiquitous use of comfortable and convenient paraphrases – enhanced interrogation techniques – realizing their responsibility in the dissonance between public political discourse lied in telling the truth as it stood and stands, not furthering the lie. There is no way of knowing whether Col. James, as a public persona, aligns with Larry James, the private individual, on the issue of torture. Another aspect of the APA motion was that it stopped providing the CIA and the Pentagon with their medical crutch, a huge part of their justification for their actions; it also confronted APA members with themselves, their actions, and their beliefs, depending on how well rooted they were. As sole dissenter, Larry James isolated himself in a landmark decision that will affect future operations of US intelligence agencies and their collaborators. He placed himself on a different shelf, aligned himself with the US’ interpretation of the Convention Against Torture that was laid out by John Yoo. He worried about criminal responsibility if the APA took a position on the absolute prohibition that aligned with international law, not with the American political context of the war on terror.

Human rights law is not rhetorical. It was not written as such and is a difficult area of practice. It is often mentioned that legal positivism is a question of morality, conscience and interpretation – all of which being subjective – but it was meant to translate into effective and immediate remedies for those affected by the violations of these peremptory norms. The prohibition of torture, although it is an intersectional and interdisciplinary issue to approach, is no different. It is part of this body of law that holds within it the fundamental principles of humanism and a loaded collective memory. Speaking of the prohibition of torture as the absolute that it is has been derided to great extent since 9/11, as being unpractical and inapplicable on the ground. The role of the APA in supporting torture was to create a sound argument for exemption, a legally acceptable derogation, hitting back at IHRL for existing outside of a reality of constant violence, fear, and imminent threats. The world had changed, we were told; it took a turn for the worst; we would not be much of a society if we did not do whatever it takes into protect each other from those external and shapeless monsters that are jeopardizing all this stability we have created. Torture is a collateral crime; it is the result of our back against the wall; it is an answer of last resort that no one wishes to brag about, but still needs to use when – we are told – all other methods failed.

Few images of British national and Guantanamo detainee Shaker Aamer exist. He insisted that this one, depicting him smiling, was the one use in coverage of his case. Aamer, who should be released by the end October, is still on hunger strike.

But the prohibition of torture is an absolute; human rights law resists against political derogations; and the truth lies outside the scope of Col. James’ arguments. We have had an opportunity to look at this torture-we-dared-not-speak-of in 2006 and 2007 through European Parliament rapporteurs Dick Marty and Claudio Fava. Their work failed to challenge overseas. Europeans, their commitment to the rule of law and their stubborn refusal to accept a war paradigm for counter terrorism will have to wait until Bin Laden is killed. It did not matter. Those reports were academic, had gaping holes where ministers were supposed to testify, untimely, and pitted natural allies against one another on questions of principle.

Feinstein’s report shifted the attention away from the purported accomplishments of special forces overseas to what they were doing in “black sites”, in Bagram, in Guantanamo, and everywhere else. It showed the general public, weary of battles of words, a side to their endless but righteous war they were not ready to face. The backlash has yet to be immense. President Obama admitted the US “tortured some folks”, and there are still no charges, no indictment. There had been a suspension of the repression, a brief moment of lucidity, during which the horror was contemplated. In those moments, there are no nuances. There are no spectrums of opinion; there is no gradual assessment. We are horrified, or we are not. It is a choice. It is fundamental to frame it as a choice, because for the first time, the general public – not lawyers, not activists, not officials-speaking-on-condition-of-anonymity – were in the know. There was an incomplete, yes, but sufficient glance at the truth. We can stare at it, as the APA did, 6 years after the first draft of the motion was submitted, and act on it, fight, struggle, and scratch beneath the surface; or we can turn away. We can pretend those practices were small moments between brackets of our collective history; a bygone footnote of a much bigger context.

The “Hooded Men”, with their legal team and Fr. Murray. Retrieved at the IrishPost, October 2015.

But if it needs repression to be worked out, it is much more important than a footnote. Repression is a tool that shapes one’s identity. The piece I quoted before imagines what a torturer on trial would face, a sort of crash course in psychoanalysis: “… If memory is malleable in one direction, obliterating what disturbs the subject, it is surely malleable in the opposite direction too.” And if the rule of action and reaction also applies to the human psyche – for a stone to roll on a plane surface, it needs a force to project its weight forward – that crucial moment in our collective memory has yet to happen. The catharsis we expected from the passing of the APA motion did not take place. The administration did not take note. The UN committee against torture continues to plead for acknowledgement, truth, accountability, reparations. Those are not symbolic; truth and accountability can begin a process of healing, and of returning to the roots of the absolute prohibition. There is still much we need to know. We need access to the medical files of Guantanamo detainees; we need the stories of those detained at Bagram; we need the memoranda of understanding between the CIA and collaborating countries to understand how the US persuaded member states to take part in the program, from simple material support – Ireland lending the Shannon airport airfield for refuel – to construction and maintenance of sites in Poland, Lithuania, Romania and many other places. Ben Emmerson called the rendition private a vast international conspiracy. How the Obama administration expects us to forgive and forget is just as unclear. Or maybe the expectations are so low in what our collective threshold of tolerance is, that it becomes acceptable to whitewash a crime of this magnitude.

As the countdown has started on the 30 days during which Congress can oppose the release of long time detainee and British national Shaker Aamer, the question of the motive for his prolonged incarceration – he was cleared for release twice, in 2007 and 2008 – rises again. It is unclear how much we will know about his medical history between his capture and his release, whether medical professionals in London will have access to to treat him, if he will be able or willing to speak. Andy Worthington, a journalist who has spearheaded the campaign for his release, has often pondered whether Aamer was the detainee who knew or saw too much. What this effectively means, we are still not sure. Aamer’s lawyer, Clive Stafford Smith, warned us in an op-ed that a campaign of misinformation seeking to justify the treatment inflicted upon a man never charged with a crime and sold to US authorities by local warlords in Afghanistan would begin. We have a duty not to repress what we know of Shaker Aamer’s torture. We have a duty to resist and endure a debate that should last, no matter how nauseating the details and painful the recollections, until we have full accountability.

When the authors of the APA motion first contacted me, they mentioned my background: I grew up in Belfast, Northern Ireland, under British counter terrorism policies that included the use of torture. It has been part of our small, local, contained history – or so we thought: the evolution of psychological torture, from Kubark to Belfast to Bagram, is now established as linear. On November 30, the judicial review for the case known as the “Hooded Men” will open in the city, and the battle for public versus withheld information will continue to rage. There is a responsibility that lies with those of us who have seen the future of a policy of impunity not to see it reemerge elsewhere.

And this responsibility isn’t rhetorical either.

L’Abolition: on Glossip v Gross

 

Tackling the death penalty question in the United States is often flawed by the lack of interdisciplinary approach. It focuses on an interpretation of the 8th Amendment; on the cost of long term incarceration; on the fairness of trials; on medical perspectives regarding the lethal injection; on the projected benefit for closure. All of those approaches are correct but intertwined. A comprehensive look at the capital punishment needs more. It needs a broader and collective conversation: the fundamental tenets of justice, the legal obligations under international law, the value of retribution, and the human cost.

 

After several botched executions continued to tarnish the image of the death penalty from Oklahoma to Missouri, it was a legitimate hope on the part of anti-execution activists and human rights workers across the board that the judicial review of the lethal execution as performed in 2015 in Oklahoma would open the door to a new narrative among the nine Justices – and the population they are entrusted to protect – that would consider the death penalty unconstitutional. Glossip v Gross failed, but on another tight ruling, a 5 to 4 majority decision, that holds as a unique approach the dissents of Justices Ginsburg and Breyer.

There is no well-traveled path to the abolition of the death penalty. It can be an act of judicial activism; it can be an executive, unilateral decision; it can be a popular, grassroots consultation. All are legitimate, and all have been used in the past by nations, developed and in development, seeking a better answer to criminal activity. Of the countries still upholding capital punishment next to the United States are North Korea, Iran, South Sudan, and Saudi Arabia. This list has long been opposed to the United States, permanent member of the Security Council, member of the Human Rights Council, self-professed world leader and freedom provider through the means of its military corps, as a motive for shame. The death penalty in itself suffices to illustrate the contradiction between what the United States purports to be, and what the United States inflicts on its own citizens.

Most of the commentary surrounding the decision centred around the threshold of cruelty. It was in Justice Alito’s main opinion, and it is a valid conversation of the interpretation of the 8th Amendment, postulating that the death penalty is constitutional. Very soon, however, those arguments fall short of the substance they should be carrying as they weigh the end of a human life: that all separate elements lead to the same question – the definition of justice. There are three key parts: one, the American exceptionalism that resides in the ratification of the ICCPR and the CAT. Two, the deeply rooted myth that the lethal injection is a more humane alternative than the electric chair. Three, that a judicial system is the voice of the people when it so shamelessly endorses retaliation and retribution as a means of punishment.

The story of the abolition of the death penalty in France is mentioned in passing, but rarely looked at in depth. In 1981, Robert Badinter, a tenor of the Bar, a criminal defense lawyer that had spent half of his career taking on death penalty cases as a matter of principle, was named Attorney General by the hours-old administration of President Mitterrand. In a phone call, Badinter warned Mitterrand of what he was about to do at the first Council of Ministers the following Wednesday. Mitterrand, solemnly and quietly, acquiesced. Badinter drafted the bill that would be voted by the Parliament on September 30, 1981. He insisted the bill would only consist of one line: “the death penalty is abolished.” A discussion on the death penalty cannot suffer conditions, derogations, exemptions, or exceptions. Although no legal, political, anthropological or psychological prelude can be dismissed as useless, the death penalty, in itself, in all it represents, in everything it has sought to destroy, in all its forms, in all its pointed so-called purpose, must be abolished.

 

Robert Badinter, criminal lawyer, former attorney general, here addressing the Senate on September 28th, 1981, on the draft bill to abolish the death penalty

 

The UN vs the US: arm-wrestling for human life

“When we walked out on the steps of the Court, I stopped. Raindrops started to fall, the beginning of a rainstorm. In the street, from the windows, everywhere, the crowd was in a hurry, I saw policemen running. From the underground the first squad cars emerged (…) and the same death screams, screams of joy, could be heard from the crowd. You could follow the trajectory of the police from the noise. Then everything became silent again. The crowd dispersed under the rain. (…) We walked down the steps, we walked down the same road we did before, without saying a word. Philippe told me he would stay there, at the hotel, that he wanted to meet with the client the next day. I agreed. I didn’t have his courage. The city was horrifying to me, I had to go back to Paris, as soon as possible. I packed and ran to the train station. The raindrops was drawing lines on the windows. I went home. I did not stop the client from being sentenced to death. So what is a lawyer for?”

 

Entered into force on July 11, 1991, the second additional protocol to the ICCPR provides for the abolition of the death penalty in all states party to the Covenant. It suffers no derogation (see article 2), for the notable – and perhaps problematic – wartime exemption. The Protocol bases itself on the inalienable right to life, and starts with the belief that “the abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights”. The United States, unsurprisingly, did not ratify this protocol. The unequivocal language that bindingly refused any reservations to the ratification process could not be convenient for the United States, that had reinstated the death penalty in 1974, and had ensured the abolition or maintenance would be a state – not federal – issue. And at every turn, under every administration, the UN never forgets to remind the US that the ratification of the protocol, admittedly optional in its very name, is necessary for the US to be able to claim they adhere, at least on paper, to basic requirements under international human rights law.

 

What matters is that it is not a question of principle; the Human Rights Council is not interested in ticking boxes on behalf of member states. Adherence to the body of law, normative and positive, is a domestic commitment not only to enshrine those obligations into domestic law, but to enforce their violations. Not only is the United States violating this commitment and its duty under international law by maintaining the capital punishment at all costs, as part of its political and legal identity, but its discourse to the UN on the one issue constantly arising – and now part of a body of torture policies encompassing Guantanamo Bay to CIA rendition – has never changed. It has never evolved. It has never been modified to fit a changing landscape of political affiliation among the American population, application of different methods of execution, and the pressure exerted on the US by foreign allies adapting their extradition laws to the practice of state sponsored killing in the name of justice: EU states, with the exception of Belarus, by decision of the Council last updated in October 2009, will not extradite a charged individual to the United States if they run a risk of being sentenced to the death penalty, unless there is assurance the death penalty will not be carried out. A 2010 document published by the Congressional Research Service on the issue of extradition mentions the exception in a passive-aggressive tone, suggesting that denial of extradition on the grounds of opposition to the death penalty is more political than it is adherence to core human rights principles: “More than a few countries are reluctant to extradite in a capital case even though their extradition treaty with the United State has no such provision, based on opposition to capital punishment or to the methods and procedures associated with execution bolstered by sundry multinational agreements to which the United States is either not a signatory or has signed with pertinent reservations.” The European Convention on Human Rights (ECHR) considers the extradition to the United States with the risk of cruel and unusual treatment in detention or application of the death penalty a violation of its own prohibition of torture (see. Soering v UK, 1989).

 

During its first Universal Periodic Review (UPR), carried out in 2010, the United States, in its national report opening with the line “a more perfect union, a more perfect world”, it sought to reassure the UNHRC that the death penalty was carried out in a manner that was dignified, respectful, and fair, hereby entirely missing the point. From their submission, para. 62:

The federal government utilizes a system for carefully examining each potential federal death penalty case. This system operates to help ensure that the death penalty is not applied in an arbitrary, capricious, or discriminatory manner, and to promote indigent defendants receiving competent representation by qualified attorneys. Many of our states have adopted procedures of their own to provide experienced counsel for indigent defendants. In addition, existing federal law permits DNA testing in relevant federal and state cases.

 

The introduction of DNA testing in criminal cases has revealed the extent to which innocent people had been sentenced to death and buried in the state that punished them. Sometimes, it is the work of legal researchers, attacking details of the case for decades before managing a literally life-saving exoneration. From the infamous Carlos DeLuna case, executed by lethal injection in 1989 and whose case reviewed by Columbia Law School provided his innocence; to Damon Thibodeaux, freed from the infamous Angola jail in Louisiana after 15 years on death row, the lucky cases of exoneration while the detainee is still alive recall unfair jury selection, dismissal of evidence, and law enforcement incompetence. Steve Kaplan, Thibodeaux’s attorney, explains in 2012 his first reaction when accessing the case file:

When I read the transcript of the trial for the first time, I thought to myself that the high school mock trial team that I coached of 15- to 17-year-olds would have run rings around the lawyers in that courtroom (…) We put more energy into a $50,000 contract dispute than went into the defence at the Damon Thibodeaux trial.

The idea that death penalty cases are and should be held to higher legal standards due to the severity of the punishment is constantly shattered with each and every case that ardent lawyers – like Badinter once was – throw themselves into. A 2014 study published by the Proceedings of the National Academy of Sciences, reveals an alarming exoneration rate: 4.1% of prisoners on death row would be innocent. The study spans 1973 to 2004 and suggests that 340 were innocent, while only 138 during that period were in fact exonerated. Supreme Court Justice Antonin Scalia, one of five judges entrusted with the immense responsibility to have the final say in an execution, does not believe for a single minute that mistakes can be made despite mounting scientific and legal evidence to the contrary. In the 2006 case of Kansas v Marsh, Justice Scalia stands firm in his position that no one could possibly ever conceive is true:

It should be noted at the outset that the dissent does not discuss a single case – not one – in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.

 There is plenty to shout about. Samuel Gross, the author of the aforementioned PNAS report, has no access to the exact data of how many innocent defendants were effectively executed. He tells the Guardian: “If you look at the numbers in our study, at how many errors are made, then you cannot believe that we haven’t executed any innocent person – that would be wishful thinking.” Because wishful thinking does in no way constitute a legal standard, let alone an acceptable one, it is clear that even the lowest possible margin of error – justice is, after all, drafted by humans and carried out by humans – is not acceptable either when it comes to the capital punishment. It is this idea that even advanced science can not be the sole piece of evidence in a trial that has bothered the United Nations since the US has claimed that its practice was fair and commendable. The Death Penalty Info Center (DPIC), an incredible online resource on the practice of the death penalty in the United States, maintains a database of exonerations and executions despite doubts about guilt. The list is non-exhaustive, and contains the heart-wrenching and perhaps most public of cases, the execution of Troy Davis in Georgia in 2011.

Now ubiquitous, the last public photo of Troy Davis before his execution, circulated by the Georgia Department of Corrections

 

The case of Troy Davis is perhaps most difficult of all, as testimonies were recanted, evidence dismissed, and yet, he faced several stays in execution, each time thinking he would die, and being sent back to his cell. The only witness who did not recant his testimony on Davis’ guilt was the very individual many accused of the murder of police officer MacPhail. Davis could never fully prepare for the end of his life, not only because of the last-minute stays, but also because the battle for his exoneration raged on on the outside. His life was hanging on a thread, and floating around in uncertainty. Perhaps Davis wanted this masquerade of justice to end. Perhaps Davis held on for his nephew, present in Georgia the day he was put to death. His sister, activist Maria Correia, died shortly after Davis from cancer. It was a warm and humid night when Davis, who refused any special meal, was given a cocktail of pentobarbital, pancuronium bromide, and potassium chloride – the tri-cocktail of state-sponsored killings. The clinical aspect of the lethal injection makes little sense minutes before a detainee is killed. Davis, like so many before him, and many more later, was given a physical to ensure he was “fit for execution”. Once declared healthy enough to die, the Kafkaesque element of cruelty and consciousness of the action, it was made known Justice Thomas, to whom the case had been referred, had denied a stay in execution. Davis refused Ativan, a sedative he was offered. He was healthy enough and conscious enough to die. At 10.58pm, the execution began. 15 minutes later, at 11:08pm, Davis was pronounced dead. That day, present outside the Georgia prison, I felt Troy Davis die in my bones. I had witnessed executions before; the feeling creeps in, slowly. When Troy Davis died, it was the weight of the mistake that had been made, the entire lack of doubt as to his innocence and the standing on a turf once built upon by freed slaves that was carrying the body of Troy Davis on a gurney.

 

In 2010, the United States delegation responded to the UN and observer states that Illinois was on the path to abolish the death penalty. In the second cycle, presented this year, the US delegation made a mention of Glossip v Gross in its national report, presenting the case before the Supreme Court has a case example of how the judicial system can correct its own mistakes before the relevant domestic bodies. From para. 49,

U.S. constitutional restraints, in addition to federal and state laws and practices, limit the use of capital punishment to the most serious offenses, such as murder, in the most aggravated circumstances and with strict limitations. It is barred for any individual less than 18 years of age at the time of the crime and for individuals found by a court to have a significant intellectual disability. There are strict prohibitions against the use of any method of execution that would inflict cruel and unusual punishment and against imposition of the death penalty in a racially discriminatory manner. Federal and state laws require that sentencing decisions be individualized to the particular offender and offense. The President has directed DOJ to conduct a review of how the death penalty is being applied in the United States. Additionally, on January 23, the U.S. Supreme Court agreed to hear an argument, and is expected to rule in June 2015, on whether the lethal injection protocol used in executions by Oklahoma constitutes cruel and unusual punishment under the Eighth Amendment of our Constitution.

 This is reflected in Scalia’s opinion – that he is visibly tired of heralding, starting it with “welcome to Groundhog Day”. He sounds self-sufficient, mocking the few recourses of the death row inmates under the capital punishment. Scalia also believes in the righteousness of a justice that kills, of the sovereignty of a Court that will endorse a decision. He associates the abolitionist movement with weakness; he abhorrs petitioners for denouncing cruel and unusual punishment after they were “duly’ convicted of crimes equally as cruel. And it’s in this cloak of pseudo-legality and chauvinistic tendency to deny the inevitable that Scalia also attacks his fellow Justices for falling for the claims many lawyers made before them:

 

… The response is also familiar: a vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has the Court ever suggested the death penalty is categorically impermissible. The reason is obvious: it is impossible to hold unconstitutional that which the Constitution explicitly contemplates. (…) Nevertheless, today Justice Breyer takes on the role of the abolitionists in this long running drama, arguing that the text of the Constitution and two centuries of history must yield to his 20 years of experience on this Court (…) Historically, the Eighth Amendment was understood to bar only those punishments that added ‘terror, pain, or disgrace’ to an otherwise permissible capital sentence. (…) Rather than bother with this troubling detail, Justice Breyer elects to contort the constitutional text. Redefining ‘cruel’ to mean ‘unreliable’, ‘arbitrary’, or causing ‘excessive delays’, and ‘unusual’ to include ‘decline in use’, he proceeds to offer up a white paper devoid of any meaningful legal argument.

And this is where Justice Scalia becomes not only painfully wrong, but completely oblivious to what constitutes a meaningful legal argument that has been pressed upon the United States since it reinstated the death penalty and sought “humane” methods of execution beyond the barbarism of the electric chair. A call to extend the realm of application of an 8th Amendment prohibition is not a redefinition; it’s a broadening of an already existing scope. A redefinition of what constitutes cruel, unusual and degrading treatment is however a long lasting and deeply rooted American tradition that Scalia seems to deliberately ignore in this paragraph, standing on the stilts of his firm belief in the unmoveable history of the Founding Fathers, and an ideal of justice based on biblical retribution. In this, Justice Scalia proceeds to offer up a pro-capital punishment diatribe devoid of any meaningful legal argument.

 

Supreme Court Justice Antonin Scalia, sick and tired of the “groundhog day” of stay of execution petitions

No one can reasonably expect Justice Scalia to be willingly compliant with international human rights law bodies. It should however not be far-fetched to expect him to understand why those cases regularly land on the Supreme Court docket – Groundhog Day – and why they rely on the same constitutional prohibition. Scalia, because of his position, knows that the law is not a static discipline. Although he conjures the phantom of Kant later in his opinion, the principle – that retribution is just discipline – carries little weight when faced with the reality that the tri-cocktail administered to Troy Davis, and now reworked to fit pharmaceutical shortages in Oklahoma and Missouri, is nowhere near a standard of fair and justified, measurable, reasonable, and proportionate punishment. If Scalia’s entire argument centres around grief elicited by the crime, provided the convict is indeed guilty, the grief is unlikely to go away by taking away another life. Whether this is Justice Scalia’s position to make that call, as opposed to basing himself on research – that he could wave around like the lost folios of Shakespeare – is only the reader’s guess.

 

Convention against torture and threshold of cruel and unusual punishment: reservations, exemptions, and botched executions

On December 19, 2014, the United Nations Committee Against Torture released its recommendations to the United States in regards to its obligations under the treaty. The “positive aspects” were extremely sparse, but the list of issues the UN raised with one of its most famous members was a journey through black holes, black sites, black operations, black injustice. Next to the rendition program and Guantanamo Bay, solitary confinement and sexual assault, the issue of the death penalty did not appear to be prioritized. It is in its own way: the abolition, at federal level, is a sign of commitment, is a significant symbol of the state of the judicial system, and is the final relinquishing of an obsolete punishment of a bygone age. And yet, in 2014, the Committee Against Torture can only be satisfied with a drip by drip abolition system, wherein each State is responsible for commuting death sentences into life with or without parole, without opposing or bypassing executive authority – or Justice Scalia’s Supreme Court – in its endeavour to make said State a place where justice can truly be achieved with concurring punishment that does not violate the fundamental aspects of humanism and, since Scalia himself referred to it, Enlightenment:

While welcoming the fact that six states abolished capital punishment during the period under review, the Committee expresses concern at the State party’s admission that it is not currently considering abolishing the death penalty at the federal level. The Committee also expresses concern at reported cases of excruciating pain and prolonged suffering that procedural irregularities have caused condemned prisoners in the course of their execution. The Committee is specially troubled by the recent cases of botched executions in Arizona, Oklahoma, and Ohio. The Committee is equally concerned at the continued delays in recourse procedures, which keep prisoners sentenced to death in a situation of anguish and incertitude for many years. The Committee notes that, in certain cases, such situation amounts to torture insofar as it corresponds to one of the forms of torture (i.e., the threat of imminent death) contained in the interpretative understanding made by the State party at the time of ratification of the Convention (arts. 1, 2 and 16).

 Justice Scalia raised two points, besides scoffing at Justice Breyer’s abolitionist wish. One was the concept that the delays were not unnecessary, and that life without parole could be opposed the same argument. On the latter, this is not entirely untrue: life without parole as a criminal punishment has already been considered a form of cruel punishment by UN observers and was at the core of a recent case against the UK at the ECHR. It is a difficult issue that does not, regardless of how Scalia frames it, undermine the case for the abolition of the death penalty. Badinter sought abolition before an agreement was reached on how to commute sentences because the question of death as a punishment in itself had no merit. Second, he argues is that “no one is entitled to a painless death”. Justice Stevens concurs. This entitlement they question, and that is the basis of human rights law – that all are born equal under the law, and are born entitled to claim their rights as unalienable – is opposed to the cruelty of the crime for which they are sentenced. That cruelty passing off as justice carries an unprecedented and unmatched level of cruelty because it is disguised under a cloak of fairness, equality, and proportionality. Justice Breyer relies on precedent to prove that the capital punishment differs “not in degree, but in kind” (Furman) and that all safeguards must be “observed, when a defendant’s life is at stake” (Gregg).

It is not just the question of a whole generation being birthed and coming of age between a death sentence and the execution (the average time served on death row is currently 18 years). It is also the process of the execution itself which, illustrated in the case of Troy Davis, who went through several stays of execution before being strapped to the gurney one last time, provokes unusual punishment. The last minute phone call, the last minute fax, may constitute last minute relief, but they also constitute extreme distress, profoundly unreliable suspension of a human life in the name of procedure. The process, shockingly well rendered in Jean Paul Sartre’s The Wall – in which a political prisoner, sentenced to death, is left in the dark as to the time of his execution, and is spared the moment the finger of the shooters were on the trigger – trivializes the existentialist quest to obtain truth and transparency as to whether the time served was legitimate, and the punishment measured. As Justice Breyer explains, some even volunteer to die, as the anxiety of the wait becomes simply too much to bear:

Several inmates have come within hours or days of execution before later being exonerated. Willie Manning was four hours from his scheduled execution before the Mississippi Supreme Court stayed the execution (…) Two years later, Manning was exonerated after the evidence against him, including flawed testimony from the FBI hair examiner, was severely undermined. (…) Furthermore, given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals. (…) Indeed, one death row inmate, who was later exonerated, still said he would have preferred to die rather than to spend years on death row waiting for his exoneration.

Only those confronted with impending and looming death can understand the anxiety and the unexplainable damage caused by the uncertainty.

 

In 2010, human rights NGO Amnesty International launched another campaign called “death to the death penalty”, using wax sculptures on four methods of execution – hanging, firing squad, beheading, and, here pictured, the electric chair.

There are five – five! – UN General Assembly (UNGA) resolutions on the abolition of the death penalty between 2007 and 2013. The international framework dates back to 1984, when the Economic and Social adopted resolution 1984/50 on “Safeguards guaranteeing protection of the rights of those facing the death penalty”. The bar was then set low: ensuring that the capital punishment would remain an exception, that it would still be carried out with high standards, and that death row convicts would still have basic rights respected. Article 14 – the last – of these safeguards isn’t clear enough to be an applicable legal standard in the face of an argument placing the death penalty in compliance with a constitutional amendment prohibiting cruel and unusual punishment. It begs for the commuting of sentences. The UNHRC, however, went further. In June 2014, a special panel appointed during the 27th session of the Human Rights Council saw then-High Commissioner for Human Rights, Navi Pillay, command the states having abolished the death penalty and urged the others to engage in a transparent, well-informed, and public nationwide debate that could later be arbitrated thanks to a decision by the country’s highest judicial body – in the case of the United States, this would be Justice Scalia’s own Supreme Court:

The abolition of the death penalty often came into effect after a period of difficult national debate. To make sure that such debates were effective, transparent and fully reflective of the collective will, it was vitally important that the public be provided with balanced information and accurate statistics that covered all aspects of the discussion on criminality and described various effective ways, short of the death sentence, to combat it. With regard to arguments that abolishing the death penalty would go against the sentiments of the public, the High Commissioner emphasized that human progress did not stand still, and that popular support for the death penalty at a given moment did not imply that such support would persist in the future. She referred to undisputed historical precedents where laws, policies and practices inconsistent with human rights standards had had the support of a majority of the people; but had eventually been abolished or banned. She urged all States that still retained the death penalty to introduce a moratorium on it as a first step. She also emphasized that States should go beyond simply ceasing executions. They should aim for a suspension of capital punishment for all who might be, or had been, sentenced to it; prosecutors should no longer seek the death penalty and judges should not impose it. That could be done, for example, through a directive from the highest judicial body.

 Justice Breyer used the argument of a judicial versus a legislative redress. The abolition of the death penalty could be a more encouraging statement should it emanate from the will of the people, from a collective, social, interpolitical and intergenerational need to end the capital punishment, as opposed to an elitism, judicial and unilateral measure coming from the top down. Badinter concluded that no such thing as the former could be implemented: the crowd’s bloodlust following a particularly shocking criminal act can never be rational nor be dependent on the law to remain fair and impartial. But if one thing shocks the people, it is also that the judicial will is no longer recognizing theirs, and the separation of powers places one somehow over the other. This is what happened to the people of Massachussetts upon learning that terrorism convict Dzokhar Tsarnaev would be sentenced to the death penalty, after they abolished it in 1987 and, several times, under the tenure of a former presidential candidate hopeful and pro-capital punishment governor, their state Congress refused to reinstate it. But Tsarnaev was on trial was federal offenses; the nationwide uproar that followed the bombing of a beloved local event weighed heavily on the judges. Boston, and the rest of Massachussetts, were left questioning their political identity, an essay in the New York Times exposing how powerless and punished they felt that a decision had been made despite their lack of consent, seemingly in the name of seeking reparations for the pain and the fear that followed the days after the event. Should the death penalty be abolished by the Supreme Court, it would perhaps lose its democratic legitimacy. But if there is one thing that Badinter knew, is that strong legal leadership sometimes requires to be a few steps ahead of the curve. Breyer, towards the end of his dissent, sees his role as a Supreme Court Justice precisely within that same framework:

The answer is that the matters I have discussed, such as the lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction – indeed the unfair, cruel and unusual infliction – of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislature in search for standards that would increase the fairness and reliability of imposing a death penalty. The legislature responded. But in the last four decades, considerable evidence have accumulated that these responses have not worked. Thus we are left with judicial responsibility. The Eighth Amendment sets forth relevant law, and we must interpret that law.

The panel heard the testimony of Kirk Bloodsworth, wrongly convicted of the murder of a young girl in Maryland in 1984, consequently spending almost 9 years on death row, in a cell barely big enough for his body to stretch and located right next to the gas chambers, where executions in Maryland took place. After recalling that his arrest and trial were ridden with judicial errors and the expediency that befalls murder investigations within a community in pain and fear, as mentioned above, Bloodsworth mentions the 2012 abolition in Maryland, after the 2003 Protection of Innocence Act, had been a long combat. He concluded, “it is the message of innocence that had made that abolition possible”. But as scientific advancements are made in the field of criminal forensics, anti-abolitionists will always rely on the closeness of a zero error point or entire scientific accuracy to support their claim; this also applies to the pharmaceutical experiments following the shortage of the drugs regularly used in executions by lethal injections.

The shortage is due in large part to a decision made by the European Union in 2011 to ban the export of pharmaceuticals used in executions to the US. In a series of moves that would infuriate any governor of any red state, the EU has in fact gotten involved into the US practice of the death penalty – from financial contributions to anti-death penalty activists, to the tune of $4.8 billion between 2009 and 2013 – to the more expected political lobby of petitions and requests made at various international events, demanding that the US comply with its international legal obligations and put an end to the capital punishment – the supranational body of governance submitted an amicus brief in Roper v Simmons, in 2005, heard and cited by Justice Kennedy. The drug shortage had a more direct and more drastic impact, however. The European Commission regulation 352/2011, amending a previous regulation from the Council, uses the following language:

 

(2) In some recent cases medicinal products exported to third countries have been diverted and used for capital punishment, notably by administering a lethal overdose by means of injection. The Union disapproves of capital punishment in all circumstances and works towards its universal abolition. The exporters objected to their involuntary association with such use of the products they developed for medical use.

 

(3) It is therefore necessary to supplement the list of goods subject to trade restrictions to prevent the use of certain medicinal products for capital punishment and to ensure that all Union exporters of medicinal products are subject to uniform conditions in this regard. The relevant medicinal products were developed for, inter alia, anaesthesia and sedation and their export should therefore not be made subject to a complete prohibition.

 

The Commission demanded that the ban be enforced immediately. The UK, initially reluctant, reversed course and re-affirmed support for the end of the death penalty. Sarah Ludford, a British MEP, told the Atlantic in 2014: “I am proud to have helped lead the campaign to stop EU-produced medicines being hijacked for such appalling uses, in line with the UK and EU commitment to abolish the death penalty around the world. I am determined to continue ensuring that Europe is not complicit in the deaths of American citizens.” That same year, US manufacturer Hopira, Inc. made the decision to stop manufacturing sodium thiopental. From a FoxNews (!) article,

 

Hospira said it decided in recent months to switch manufacturing from its North Carolina plant to a more modern Hospira factory in Liscate, Italy. But Italian authorities demanded a guarantee the drug would not be used to put inmates to death — an assurance the company said it was not willing to give.

“We cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment,” Hospira spokesman Dan Rosenberg said. “Exposing our employees or facilities to liability is not a risk we are prepared to take.”

 

Screen Shot 2015-07-25 at 16.30.35

If anything, it is globalization of trade that has slowed down the process of the death penalty. It has still to stop. Instead of looking at international pressure to stop killing human beings, or risking the capital of domestic corporations on violations of international law, states continuing the practice have turned to the highly dubious practice of compounding pharmaceuticals, which is akin to medical experimentation. This has led to the botched executions in Ohio and Oklahoma, covered extensively by The Guardian but failing to garner the uproar nationwide, where executions in southern and Midwestern states are frequent enough to void the qualifier of “unusual” punishment. Compounding drugs are not FDA-approved, are often found to be deficient; they may obtain accreditation, but it is not a requirement. So far in the US, only 180 compounding pharmacies have received said accreditation, placing them under a standard of accessing high quality drugs and working on certain type of equipment. This is this practice that is denounced at the core of Glossip v Gross, and that the UNHRC maintained had to be transparent and well-informed for a continued public debate on the death penalty. Quoting the irreplaceable Death Penalty Info Center (DPIC) on the use of compounding pharmacies and pharmaceuticals used in lethal injection:

South Dakota obtained pentobarbital, an anesthetic used in executions, from a compounding pharmacy for the October 15, 2012 execution of Eric Robert. The same source was likely used in the October 30, 2012 execution of Donald Moeller, but the Department of Corrections did not release information on the drug.

In 2012, in response to a court order to reveal the source of its lethal injection drugs, Pennsylvania announced that the drugs were obtained from compounding pharmacies. Pennsylvania’s execution protocol is the subject of a federal class action lawsuit. No executions have been carried out in the state since 1999. In March 2013, in anticipation of an execution that was later stayed on unrelated grounds, the Director of Colorado‘s Department of Corrections wrote a letter to 97 compounding pharmacies in the state, asking them to provide sodium thiopental for the execution.

After Georgia‘s supply of pentobarbital expired in March 2013, the state announced that it planned to obtain a new supply from a compounding pharmacy for the scheduled execution of Warren Hill (Associated Press, 7/11/13). Hill’s execution was stayed when a judge found unconstitutional a new state law that shielded the source of Georgia’s lethal injection drugs.  

In October, 2013, TexasOhio, and Missouri announced plans to obtain drugs from compounding pharmacies.

Paris, 1946: executioners set up “the widow”, the guillotine, for the execution of Dr. Petiot. The guillotine was France’s primary method of execution for the capital punishment until its abolition in 1981. The last man to be executed by guillotine was Hamida Djandoubi in September 1977

The Supreme Court can discuss and debate whether or not the abolition of the death penalty is a judicial matter. It can attempt to rely on Congress and state legislature like it had done before in order to obtain a popular legitimacy they feel they would otherwise not have. This reveals a crisis of authority, not a discussion on the Eighth Amendment. It seems that regardless of the horror and the threshold of cruelty death row inmates have been submitted to, the war on terrorism, the war on drugs and other forms of domestic belligerence have endorsed violence as a means of retribution that is both legitimate and lawful. The United States exceptionalism lies within this capacity to survive despite its internal bloodshed and to herald it as a success of its own capacity of restraint. It is illogical and dangerous. It is destructive and blood-thirsty. It is, however, self-sustaining; the more violence is committed, the more retaliation finds itself justified in the eyes of those who believe the law should be a conflict referee, not a fair decision-maker on the basis of neutrality and equality. It is a concept that European bodies have failed to understand and the UN, failed to dismantle. There is no other authority but the Supreme Court, at this stage, to rule the death penalty as a whole – and not a means of execution – unconstitutional and hereby unlawful according to the law of the land. If Justices Thomas and Scalia await a popular change, a tidal wave in the popular opinion, a catalystic event that would reverse the course of the death penalty support in certain state legislatures, many will die, and will continue to die past their tenure in the Supreme Court. The closer some states – like Nebraska – are to a full abolition and commuting of sentences, the closer others are to continue killing in the name of justice, and do so in secret, forcing newspapers and attorneys to file delayed freedom of information requests to find out how their client will die, and whether the Supreme Court will grant a stay. Not this Supreme Court. Not right now.

 

 

Robert Badinter recalls the execution by guillotine of Bontems, in 1972. He recalls the 3am phone call, as he got out of bed, and contemplated the death of his client, shaving his face, slowly and carefully, “as a mark of politeness to the man who will die.” Later, he wrote:

 

Bontems was dead. I had seen Bontems walk to his death. I had seen a man die, a man I had represented. I would no longer be able to do anything to defend his case. No one pleads for a dead man. The lawyer of a dead man is only a man who remembers.

The guillotine makes everything pointless. There can be no revision, no possible stay, no possible exoneration, for the man who lost his head. I could no longer do anything for Bontems. This was the naked truth, the only truth of the night he died. What was the meaning of everything that had taken place, of all that we had done or wanted to do, for him, we as his lawyers? I looked at my face in the mirror. There was no answer. This isn’t the face of a murderer. This isn’t the face of a defeated lawyer, either. I turned off the light. Life, my life, would go on. But this was not the end. That night, for me, would not end with dawn.

Something about England: terror trials and press freedom

Court artist’s sketch of Erol Incedal

Of all the things I hold to be true and self-evident:
That all men and women and everyone across the spectrum are born equal under the law,
That fundamental political, civil and human rights in a healthy democratic society are subordinate to the oversight of an informed population,
That the guardians of said information are entitled to freedom from governmental interference, harassment, and intimidation.

Of all the things that have infuriated me over the past two years and committed by the conservative administration of the United Kingdom of Great Britain and Northern Ireland:
The arrest and detention of David Miranda, Glenn Greenwald’s husband, at Heathrow Airport under counter-terrorism legislation;
The passing of the Justice and Security Act of 2013, setting up secret trials for terrorism suspects;
The confiscation of Ian Cobain’s notebooks containing notes from the Incedal trial by Her Majesty’s Intelligence Services.
The latter point has seldom been reported on. Cobain himself has published several pieces about it, framing the event in a broader, sharper light, casting away the politics of national security obfuscation that has become Home Secretary Theresa May’s trademark. Open justice and access to information are violated in the name of protecting national security interests. Why this trial had to be held away from the eyes of the press will never be known: the notebooks were confiscated, grabbed by MI-5 agents outside of the courtroom and are currently held in a vault inside Thames House. What those notebooks contained is even restricted in itself: “On each occasion, the evidence was carefully presented in one of three sessions. Parts of the case were in open court, with the press and the public free to come and go; other parts were held behind locked doors, before a jury whose members were warned that they could go to jail if they ever divulged what they had heard; and parts were held in intermediate sessions, in the presence of the jury and a small group of journalists who are prohibited – at least for the time being – from reporting what they learnedwrites Cobain in March, recalling the events leading to that illusion of open justice. What we know of Erol Incedal, the 27 year old London resident and law student, was that he was found in possession of a bomb making manual in the trunk of his car. We also know that his surveillance started after a routine traffic stop in London. The blackout only resulted in one public curt decision: the court failed to reach a verdict in the charge of committing acts preparatory to terrorism. He was acquitted on the charges of committing preparatory acts of terrorism; he was however guilty of being in possession of the bomb-making manual.

Assuming there is a valid purpose to secrecy in the course of justice, methods are already in place through the submission of PII certificates – confidentiality – by the government to the judge. The evidence itself can thus be concealed from public access, should this pertain to ongoing intelligence activities, military strategies and deployments, or sealed diplomatic documents. PII certificates have similar applications in other countries and other systems of laws, and have worked just fine until then – sometimes even to the point of working too well, when certificates are requested then issues for a troubling majority of the content discussed during the trial. Every case surrounding alleged criminal activity committed by the government’s intelligence agencies have been shrouded in secrecy; the Investigatory Powers Tribunal (IPT) itself extends non-committal statements through its determination / non determination system, which is suggestive, not declarative. In itself, those cover an impressive array of restrictions to the principle of open justice. What the JSA 2013 does, and what happened to Ian Cobain and his peers covering the Incedal trial, has crossed an untenable and inexcusable limit.

Lady Justice at Old Bailey

2013, 2014 and 2015 were not good years to be a journalist in the UK. Those were not good years to work at the Guardian. For wanton acts of publishing to commission of acts of journalism, the King’s Way newspaper has seen its headquarters invaded by GCHQ agents in a humiliating, destabilizing, and thoroughly disturbing destruction of their hard drives allegedly containing the NSA files handed by Edward Snowden – despite GCHQ fully knowing that copies of the files were stored at other newspapers’, as well as disseminated worldwide to precisely avoid their utter destruction. The goal was to belittle and cripple The Guardian. The goal was to show journalists their place in the war on terrorism and the surveillance apparatus. The avowed goal was to make journalists understand it is not their place to reveal anything that would not be preemptively approved by the government. The goal was to make the press hear, as clearly as a clarion on a naval base, that truth was not convenient; that an informed public is a threat to institutional status quo; that any alleged violations of fundamental human rights were proportionally weighed against the protection and the security of the realm; that it is not the job of a journalist to place a question mark at the end of this sentence.

Except it is. A journalist is not a spokesperson. A journalist is not a press secretary. A journalist is not the political amplifier of those in power. A journalist should always have a question mark.

In a situation that we learn of drip by drip, leak by leak, whistle by whistle, reporting by reporting, the question of access to courts, access to representation, and access to justice becomes more and more obfuscated. It is not just that the trial is heard in secret; it’s that evidence held against the defendant is rarely communicated to their legal representation. In one Kafkaesque twist after the other, the very claim put to the court becomes obscured by the fog of the war on terror. Where justice is expected to shed a light on abusive proceedings, it is itself impended by mechanisms violating its independence and its separation from powers of governance. We do not know how much Erol Incedal knows about what the security services know about him. We do not know if he was fully informed of the charges made against him. We do not know on which grounds his acquittal was decided. All we know is that he was present; journalists, however, kept being held back, pushed away, or let inside for a maximum of three minutes. Ian Cobain’s notes could not have been anything more than what had been graciously and magnanimously exhibited to him in those extremely rare peaks inside the courtroom. His notes could not say, detail, or reveal more than the trial itself had let open on those occasions. And yet, his notes, taken down on a reporter’s notebook, are inside a vault at the MI-5 headquarters.

Thames House, the MI-5 headquarters

In 2014, the High Court decision in Miranda v UK exposed several gaping holes in the safeguards for press freedom in the Empire. Judge Laws, in rare form, referred to a legal precedent – Attorney General v Guardian Newspapers (1990), quoting Lord Goff: “I can see no inconsistency between English law on this subject and Article 10 (…) The only difference is that, whereas Article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.” It is now the established law that terror trials can be lawfully held in secret if such is the decision of the Government and is endorsed by the hearing Judge. It is disturbing enough that the fundamental right to freedom of information and press freedom is directed through methods of concealment and confidentiality that are at no point weighed against informed consent or democratic principle, but instead the safety of the organizations that are targeted by the alleged criminal conduct. That the same organizations are now entitled to grab a reporter’s notebook – protected by press freedom principles – and hold it hostage inside a vault like a hazardous substance – goes way, way further than what Lord Goff intended to protect in 1990.

Richard Norton-Taylor tried to explain the situation in a July 14 piece for the Guardian that raises more questions than it provides answers. Officials leave little to account for, and the confiscation targeted eight journalists specifically, on a measure that is unprecedented. It is presented almost like a last resort: “During the trial, the reporters had to leave their notebooks in court. At the end of the trial, eight reporters’ notebooks were taken (…) officials have not been able to explain it. While they say there was nothing sinister in it – the court provided for the crown to store them securely – they also say there was nowhere safe in court for this to be done, so the MI-5 has effectively impounded them.” Cobain provided a quote that is in complete defiance of the “nothing sinister” qualifier: “Only once before, in more than 30 years of journalism, has a state security officer impounded one of my notebooks”, said Cobain to Norton-Taylor. “And that was in Saddam Hussein’s Iraq.

Something should jump to any legal pair of eyes. Why did the Court provide for the Crown to “securely store” reporters’ notebooks in the first place?

Some would argue – Lord Laws, probably – that journalism protection is a privilege, not a right. Lord Goff argued that this right is self-evident, until the law sweeps in to take parts of it away in the name of national security. Both are wrong. Press freedom is a human right, and so is freedom of information. The national security exemption, as defined and strictly limited in the Johannesburg Principles – normative, not positive, the only concession to be made – does not extend to barring access to an ongoing trial entirely, and certainly not to confiscate, indefinitely, notes taken by reporters. Cobain made several unsuccessful appeals to have his notes returned. Lord Thomas heard the appeal made by collective news organizations, to which the aforementioned eight reporters belonged, and concluded that the decision raised “really difficult constitutional issues”. Lord Thomas, never one to fight on behalf of confidentiality – he did, after all, request the partial release of UKUSA in the Binyam Mohamed case – mentioned this disturbing intervention of the executive resulting in the breach of judicial independence. This should never be a norm. This should never be an acceptable or normalized state of affairs. The appeal, adjourned until October, may shed a light on the justifications made by the executive to go to that unbearable extent to silence the press, hinder journalistic work, and shield counter terrorism and terrorism suspects from public scrutiny and knowledge – and in the hands, entirely, of intelligence services.

Until then, indeed, and until Lord Thomas makes a not so difficult, but politically adverse decision regarding the independence status of the British judiciary in matters of terrorism and those who report on the security state -until then, there is little one can do to ensure that those notebooks won’t be tampered with. Until then, we can’t expect the freedom of the press to be fully exercised from inside the borders of England and Wales.