Preventing Torture within the Fight against Terrorism 6 by IRCT International Rehabilitation Council for Torture Victims

NEWSLETTER Volume 2, Issue 2

Preventing Torture Framing the Issue

March 2008

within the fight against terrorism Inside this issue: Yes, waterboarding is

Yes, waterboarding is torture

torture

by Bent Sørensen, IRCT Senior Medical Consultant

On 5 February, CIA director Michael Hayden admitted that during interrogation of three Al Qaeda suspects five years ago his agency had used waterboarding – a torture method whereby water is forced into the victim's lungs, inducing a powerful sense of drowning. The admission was followed by statements from other senior U.S. intelligence officials that they refused to rule out utilising this socalled “enhanced interrogation technique” in the future, while a White House spokesman said the President could authorise waterboarding in certain situations, including "belief that an attack might be imminent". On 8 March the White House confirmed its stance when President Bush vetoed a bill passed by the House and Senate, which would prohibit the CIA from utilising waterboarding and any other interrogation technique not condoned by the U.S. Army Field Manual. Preceding the admission had been a debate in the Congress during which United States AttorneyGeneral Michael Mukasey

has refused to state whether, in his view, waterboarding constitutes torture. But let us not be in doubt: waterboarding - without any reservation - can be labelled as torture, as it fulfils all of the four central criteria that according to the United Nations Convention against Torture (UNCAT) defines an act of torture. First, when water is forced into your lungs in this fashion, in addition to pain, you are likely to experience an immediate and extreme fear of death. You may even suffer a heart attack from the stress or damage to the lungs and brain from inhalation of water and oxygen deprivation. In other words there is no doubt that waterboarding causes severe physical and/or mental suffering – one central element in the UNCAT’s definition of torture. In addition, the CIA’s waterboarding clearly fulfils the three additional definition criteria stated in the Convention for a deed to be labelled torture, since it is 1) done intentionally, 2) for a specific purpose and 3)

Serious HR violations

by a representative of a state – in this case the U.S. Finally it should not be forgotten that the consequences of torture – including waterboarding – are often long-lasting or even chronic. For instance, anxiety attacks, depression and Post-Traumatic Stress Disorder are very common sequelae after torture, regardless of whether the victim is guilty or innocent. So torture is never just a momentary infliction of suffering. Waterboarding is thus a clear violation of the UNCAT, which specifies that torture is not permissible under any circumstances, including during times of emergency or threats to national security. The recent failure of the U.S. Congress to overturn the President’s veto thus represents a failure on the part of the United States to fulfil its international obligations. It is time once and for all to clearly ban waterboarding and all other forms of torture

during anti-terror campaign must be corrected—and never

repeated Reporting on torture in the context of the “war on terrorism”

Recommended reading

and ill-treatment, to ensure that perpetrators all along the chain of command are prosecuted and tried, and to guarantee that all victims of torture and ill-treatment by U.S. agents receive reparations, including adequate medical, physical and psychological treatment.

Bent Sørensen is a former member of the UN Committee against Torture and serves as Senior Medical Consultant to the International Rehabilitation Council for Torture Victims.

UPCOMING SEMINAR IN BRUSSELS, 4 APRIL:

Reporting on torture in the context of the “war on terrorism”...see page 3 for details on how to register

Volume 2, Issue 2

Page 2

“Serious human rights violations during anti-terror campaign must be corrected—and never repeated” by Thomas Hammarberg, Commissioner for Human Rights, Council of Europe

Strong and coordinated action is needed to prevent and punish terrorist acts. The tragic mistake after September 11 2001 was not the determination to respond, but the choice of methods: terrorism must not be fought with terrorist means. The US-led “war on terror” has violated core principles of human rights – also in Europe. It has victimized thousands of individuals, many of them totally innocent. It is urgent that the damage now be repaired. The fact that democratic states have used illegal methods might well be what terrorist leaders hoped for. It has seriously harmed the credibility of the international system for human rights protection. It is a fundamental principle that respect for human rights, basic freedoms and the rule of law be upheld also in times of tension and crisis – and by everyone. The first step to restore the primacy of these values is to recognize the facts. European decision makers would do well to take note of the debate in the United States, which is now, at long last, both frank and selfcritical. The New York Times, among others, has repeatedly articulated deep human rights concerns. In an editorial in mid-January it summarized the main points: “In the years since Sept. 11, we have seen American soldiers abuse, sexually

humiliate, torment and murder prisoners in Afghanistan and Iraq. A few have been punished, but their leaders have never been called to account. We have seen mercenaries gun down Iraqi civilians with no fear of prosecution…”. “Hundreds of men, swept up on the battlefields of Afghanistan and Iraq, were thrown into prison in Guantanamo Bay, Cuba, so that the White House could claim they were beyond the reach of U.S. laws. Prisoners are held there with no hope of real justice, only the chance to face a kangaroo

the innocents kidnapped on street corners and in airports – to be tortured into making false confessions, or until it was clear they had nothing to say and so were let go without any apology or hope of redress.” This editorial reveals flagrant defiance of core principles of justice on which human rights are built: protection against torture; presumption of innocence; no deprivation of liberty without due process; the right to a fair trial; the right of appeal; and the right to reparation.

Democracies should never accept the use of secrecy doctrines to excuse lack of action against serious human rights violations. court where evidence and the names of their accusers are kept secret, and where they are not permitted to talk about the abuse they have suffered at the hands of American jailers.” “In other foreign lands, the CIA set up secret jails where “high-value detainees” were subject to even more barbaric acts, including simulated drowning. These crimes were videotaped, so that “experts” could watch them, and then the videotapes were destroyed, after consultation with the White House, in the hope that Americans would never know.” “The CIA contracted out its inhumanity to nations with no respect for life or law, sending prisoners – some of

European citizens are also among the victims. Some have been brought to Guantanamo for indefinite detention and interrogation in violation of the United Nations Convention against Torture. Others have been “blacklisted” by the Security Council on suggestion of the US. They have had their bank accounts frozen and been prevented from any travel – without legal procedures and any possibility to appeal.1 European governments have not defended their citizens in these situations with sufficient vigour. They have been late in clearly condemning these methods of counter-terrorism. They have yet to fully clarify the facts about European

cooperation with the US intelligence services in this counter-terrorism policy. Senator Dick Marty in the Council of Europe Parliamentary Assembly managed in his investigation to uncover cooperation of European countries in the “spider’s web” of detainee transports to Guantanamo as well as to secret prisons. This needs to be discussed in depth. Tendencies to see the protection of human rights as an obstacle to effective work against terrorism must be discarded. As Kofi Annan once said, respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism. It is of utmost importance to uphold human rights standards in times of crisis – that is when the strength of our values is tested. Attempts to redefine the very meaning of torture must not be accepted. Simulated drowning (“water boarding”) remains torture, also when used against terrorist suspects. Sending back people to situations where they risk torture is unacceptable – so-called diplomatic assurances from regimes that practice torture cannot be used as a pretext to circumvent the ban on such deportations. Independent and effective national investigations should be set up whenever there are credible allegations of unlawful

Volume 2, Issue 2 renditions or secret detentions. States are required to investigate human rights violations under the European Convention on Human Rights. One such case is the Swedish handover to CIA agents of two asylumseeking Egyptians, Ahmed Agiza and Mohammed alZari, at an airport in Stockholm from where they were flown to security cells in Cairo and subjected to “harsh” interrogation. The handling of this case has been severely criticized by the United Nations Committee Against Torture. Although the Swedish government has admitted mistakes it has not yet agreed to a full investigation into all circumstances of the case. One argument against such investigations has been the fear of damaging relations with US intelligence services. Exchange of secret information between the security agencies is essential for each of them. However, the Canadian authorities demonstrated in the case of Maher Arar—a Canadian citizen who was stopped at a US airport and handed over to the Syrian security police and badly

Page 3 tortured—that a thorough and fair investigation is possible without endangering the intelligence nerve system. This is also about a crucial principle. Democracies should never accept the use of secrecy doctrines to excuse lack of action against serious human rights violations. It should be absolutely clear that security agents must also be held accountable – parliamentary and judicial scrutiny must be possible. One of the lessons of the mistakes made during the “war on terror” is that the national security agencies must be kept under effective democratic control. This was indeed one of the recommendations resulting from inquiries conducted by the Parliamentary Assembly of the Council of Europe, the Council of Europe Venice Commission and the Temporary Committee of the European Parliament. The Secretary General of the Council of Europe suggested measures to oversee the activities of national and foreign security agencies and also to prevent illegal air transports of detainees. Three problems in particular were addressed in these recommendations:

• Activities of national and foreign civilian and military intelligence services operating in European countries should be regulated; • Transiting civil and State aircraft should be controlled so that illegal transport of detainees is prevented; and • Measures should be taken to ensure that secrecy doctrines and state immunity do not become a shield against investigating serious violations of human rights. The full truth about European cooperation with the secret detention and unlawful rendition programmes must be exposed, the breaches of the European Convention of Human Rights addressed, the victims granted reparation and decisions taken to ensure that these violations will not be repeated. European governments must act on these recommendations. A headin-the-sand attitude cannot be defended. These issues must be fully addressed, and the time is now. 1. See PACE Resolution 1597 (2008) and Recommendation 1824 (2008), based on PACE document 11454

LINKS PACE Resolution 1597 (2008) and Recommendation 1824 (2008) on United Nations Security Council and European Union blacklists, based on PACE document 11454 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar PACE Recommendation 1801 (2007): Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report. Venice Commission Report on the democratic oversight of the security services (doc. CDL-AD (2007)016, 11/06/07) European Parliament resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI)) - 14 February 2007 Follow-up to the Secretary General’s reports under Article 52 ECHR on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies (SG/Inf(2006)5 and SG/Inf(2006)13) - Proposals made by the Secretary General (SG/Inf(2006)01, 30/06/06)

This Viewpoint was first published on 4 February 2008 and is also available at the Commissioner's website at www.commissioner.coe.int

EVENT: Reporting on torture in the context of the “war on terrorism”

On Friday 4 April, the IRCT will host the half-day seminar Reporting on

torture in the context of the “war on terrorism” at the European Parliament in Brussels. The seminar will include panel discussions on the

changing nature of torture in democratic societies, as well as on persecution and other challenges facing journalists reporting on torture and other human rights violations. Guest speakers will include, among others, representatives from the

Council of Europe and European Parliament and award-winning journalists from Colombia, Egypt and Denmark. The seminar is intended primarily for those reporting on human rights violations, though other interested

parties are welcome to attend. Please contact Sarah Schug at the IRCT Brussels Liaison Office for more information and to reserve a space: s.schug@irctbrussels.be or +32 2 230 1504.

Volume 2, Issue 2

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International Rehabilitation Council for Torture Victims (IRCT) Borgergade 13 · P.O. Box 9049

For more information...

1022 Copenhagen K DENMARK Phone: +45 33 76 06 00 Fax: +45 33 76 05 00 Email: irct@irct.org www.irct.org

FIDH 17, passage de la main d’or 75011 Paris FRANCE Phone: +33 1 43 55 25 18 Fax: +33 1 43 55 18 80

The “Preventing Torture within the Fight against Terrorism” newsletter is published bimonthly as part of a joint FIDH-IRCT project aimed at reinstating respect for the prohibition against torture in counterterrorism strategies both globally and in these target countries: Bangladesh, Colombia, Egypt, Indonesia, Jordan, Kenya, Mauritania, Pakistan, the Philippines, Russia and Syria. The newsletter editors welcome submissions of content for future issues, including articles (send query first), comments, letters to the editor (up to 250 words) and suggestions for recommended reading. To submit content or make enquiries, email Brandy Bauer, IRCT Communications Officer, at tortureandterrorNL@irct.org

www.fidh.org

For more information about the “Preventing Torture within the Fight against Terrorism” project, please visit the IRCT web site (www.irct.org) or contact: Sune Segal, Head of Communications, IRCT, +45 20 34 69 14, sse@irct.org or Isabelle Brachet, Director of Operations, FIDH, +33 1 43 55 25 18, ibrachet@fidh.org

This newsletter is being published with funding from the European Commission