Our Culture of Impunity that Begets Crimes of Torture: 26th June 2023  - International Day in Support of Victims of Torture

By Eunike Mangampa / GICJ

On the 26th of June, each year, we remember the stories of those subjected to torture. However, on the “International Day in Support of Victims of Torture,” we do not merely remember. To fully honour these victims, we call on states to hold themselves accountable for their crimes of torture.

A need to focus on accountability

During the 52nd Human Rights Council (27 February – 4 April 2023), Dr. Alice Edwards, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, spoke about the failure of nations to investigate torture cases. While many states are vocal about the need to prohibit torture, the legal obligation to investigate torture has been universally under-implemented. Dr. Edwards spoke about the need for states to “take ownership of justice processes” and release sentences commensurate with the offence’s gravity. To do this, she urged governments to legislate torture as a war crime and a crime against humanity in their prospective national laws. She expressed that these steps are necessary to achieve meaningful reconciliation as they allow for more transparency and pave a clearer path for victims to pursue justice. 

In February 2023, the Office of the United Nations High Commissioner for Human Rights released the Special Rapporteur report on the good practices in national criminalization, investigation, prosecution and sentencing for torture offences.[1] In this report, she highlighted the institutional, legal, political and practical challenges associated with launching investigations into cases of torture.

The problems highlighted in the Special Rapporteur’s report reflect the discrepancy between the ratification of international conventions such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the reality where torture still prevails and is experienced by people of all backgrounds. Governments often condemn human rights violations but fall short in their mention of consequences for violators. They forget that the impunity they grant perpetrators constitutes a form of compliance. 

“Some states wrongly perceive criminal investigations into torture as a direct attack on their legitimacy. On the contrary, what threatens government legitimacy is impunity,” says Dr. Alice Edwards during an interactive dialogue on the report of the Special Rapporteur on torture (A/HRC/52/30).

Torture as a byproduct of the “War on Terror.”

The “War on Terror” has engendered some of the most widely reported cases of torture. It illustrates the repercussions of creating counterterrorism policies that breach international humanitarian law. Since 2002, the US has extrajudicially transferred 780 men and boys to Guantanamo Bay, a US naval base in Cuba.[2] Most of these people were from Afghanistan, captured during the early phases of the US invasion. Reportedly, all these detainees were Muslim.[3] The camp is infamous for its use of “enhanced interrogation techniques,” which, to put simply, were government-sanctioned torture methods. The practices of the US military within the camp violated the Third Geneva Convention, which sets out a minimum standard of care for prisoners of war that includes the prohibition of torture, violence or cruel and degrading treatment. To work around this restriction, the Bush administration redefined its captives, labelling them as “unlawful combatants” instead of prisoners of war, and hence stripping away the rights that the detainees had been ensured in the Geneva Convention.[4] This exercise of judicial activism under the Bush administration displays one of the many ways governments declare a non-application of criminal law against torture. The dangers of creating a legal exception to this jus cogens norm also lie in its setting of a precedent that could be used to justify future derogations to the prohibition. While the use of enhanced interrogation techniques was banned by President Obama in 2009, Guantanamo Bay is still in operation, holding dozens of detainees. Guantanamo Bay should not simply be seen as a remnant of a cruel past but instead, become a reminder of the persistence of torture and the culture of impunity that begets it.

Prior to the transfer of detainees to Guantanamo Bay, many were held in CIA “black sites” where they were subject to similarly grave violations. One of these black sites was Abu Ghraib prison. In August 2003, the US military reopened the Abu Ghraib prison complex in Baghdad. The release of multiple reports and photographic evidence from the prison revealed that the United States Military had chosen to use inhumane treatment. Circulating the news were stories of grave human rights abuses, including the use of torture that then led to several fatal cases. Pictures taken by American soldiers released to the public depicted their degrading treatment, often involving nudity and sexual abuse.[5] This was corroborated by a report from the army’s own internal investigation. In response, the US government took the stance of calling these acts of torture “isolated incidents,” suggesting that the perpetrators were acting without orders and that this was a standalone event.[6] Even a cursory examination into US detention centres post-9/11 would prove this statement false. Other known locations where the US military carried out similar acts include Bucharest and Bagram. 

Despite overwhelming proof, no US government official has been held accountable. While parts of the 2014 US Senate Intelligence Committee’s “Torture Report” has been publicized, torture crimes in this counterterrorism campaign have been left widely uninvestigated.[7] Like other presidents before him, President Biden has expressed no interest in further investigating or prosecuting the instigators. Notably, in the International Criminal Court’s investigation of human rights abuses in Afghanistan, Biden has refused the formal request to examine abuses conducted by US nationals.[8] 

Hopes for future accountability

In a side event organised by our organisation at the United Nations headquarters in Geneva, (March 2016) Ali Shallal al-Qaysi, a survivor who was tortured for months in the Abu Ghraib prison, explained that the phenomenon of mass detention in Iraq was initiated by the United States and pursued by the Iraqi authorities who resorted to mass arrests and detentions against Iraqi citizens. Mr Shallal stressed that from the very first day of his arrest, he was subjected to the worst forms of treatments; at that point, he showed a wound on his neck explaining that an American soldier’s dog “ate from that part”. He mentioned the use of electricity during torture, and that he was hanged for 5 consecutive days without being provided with any food. 

“The number assigned to me was 151’716. The number of prisoners reached 1.2 million and none of these people was able to avoid torture and mistreatment at the hands of the US soldiers and their contractors.” [9]

Geneva International Centre for Justice urges states to pursue justice for all crimes of torture by investigating all past and present reports of torture and prosecuting those involved in its planning and execution. Pursuant to the recommendation of the Special Rapporteur, states should legislate torture as a war crime and a crime against humanity to ensure a proportionate response to the gravity of the crime. GICJ strongly condemns all instances of torture; we position ourselves in the belief that torture is never justifiable. We prompt governments to re-examine their policies and practices, particularly those related to counterterrorism, to ensure that it is in line with international humanitarian law and all relevant international conventions on torture. 

On this day, we call on states to realise their promises of eradicating torture into action for Ali and others like him.

References

[1] Office of the United Nations High Commissioner for Human Rights. A/HRC/52/30 https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session52/advance-version/A_HRC_52_30_AdvanceEditedVersion_0.docx

[2] Al Jazeera and News Agencies. “Timeline: 20 Years of Guantanamo Bay Prison.” Human Rights News | Al Jazeera, 11 Jan. 2022, www.aljazeera.com/news/2022/1/10/timeline-20-years-of-guantanamo-bay-prison.

[3] Reprieve. Submission to the Special Rapporteur on freedom of religion or belief for the thematic report on the manifestation of intolerance, hatred and discrimination against persons based on their religion or belief https://www.ohchr.org/sites/default/files/Documents/Issues/Religion/Islamophobia-AntiMuslim/Civil%20Society%20or%20Individuals/Reprieve.pdf

[4] Masters, Jonathan. “Guantanamo Bay: Twenty Years of Counterterrorism and Controversy.” Council on Foreign Relations, 9 Sept. 2022, www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy.

[5] Volle, Adam. “Abu Ghraib Prison.” Encyclopædia Britannica, 22 June 2023, www.britannica.com/topic/Abu-Ghraib-prison

[6] Brody, Reed. “The Road to Abu Ghraib.” Human Rights Watch, 28 Mar. 2023, www.hrw.org/report/2004/06/09/road-abu-ghraib

[7] Tayler, Letta, and Elisa Epstein. “Legacy of the ‘Dark Side.’” Human Rights Watch, 9 Jan. 2022, www.hrw.org/news/2022/01/09/legacy-dark-side.

[8] Speri, Alice. “How the U.S. Derailed an Effort to Prosecute Its Crimes in Afghanistan.” The Intercept, 5 Oct. 2021, www.theintercept.com/2021/10/05/afghanistan-icc-war-crimes/

[9] GICJ side event on The Human Rights situation in Iraq. https://www.gicj.org/conferences-meetings/human-rights-council-sessions/side-events/980-the-situation-in-iraq