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Aiding Torture

Our top politicians may have violated international law. Why is that not an election issue?

By Michael Byers 17 Jan 2006 | TheTyee.ca

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[Editor's note: This article is adapted from a keynote address given by Professor Michael Byers, Canada Research Chair in Global Politics and International Law at UBC. The occasion was the opening of the UBC Model United Nations in Vancouver on January 12, 2006]

Two recent quotes. First, from Louise Arbour, the United Nations High Commissioner for Human Rights, just five weeks ago, on December 7, 2005:

Now, this one from December 18, 2005:

With those words, former US Secretary of State Colin Powell sought to extinguish a scandal that has been raging in Europe over the use of European airspace and airports for the "extraordinary rendition" of terrorist suspects, either to secret CIA prisons, or into the hands of foreign intelligence services notorious for torture, such those of Syria and Egypt.

Yet, Powell's words cannot change the fact that secret prisons, and at least some of the renditions and methods of interrogation used by the CIA, constitute serious violations of international law, including the Torture Convention.

His words cannot change the fact that those who facilitate these activities-for instance, by allowing the CIA aircraft to land and refuel-might, themselves, be engaged in international crimes.

And it cannot change the fact that Canadian airspace and airports were likely also used by CIA aircraft engaged in renditions, and that Canadian politicians, too, might now be open to prosecution for complicity in torture, either in the domestic courts of this and other countries, or before the International Criminal Court in The Hague.

'Extraordinary rendition'

International law has well-established rules on the involuntary transfer of persons across borders. It is illegal to deport or otherwise return someone when, in the words of the 1984 Torture Convention, "there are substantial grounds for believing that he would be in danger of being subjected to torture."

The Canadian Supreme Court has held that this prohibition does not necessarily apply when national security is at risk and, in exceptional situations, Canada relies on assurances of good treatment from receiving states. That decision-in the 2002 Suresh case-was properly criticized by Manfred Nowak, the UN Special Rapporteur on Torture, on the basis that "diplomatic assurances are unreliable and ineffective", not least because they "are sought usually from states where the practice of torture is systematic". The European Court of Human Rights expressed a similar view in 1996, when the British government sought to rely on an assurance of good treatment from India before deporting a Sikh militant there.

Abducting a person from another country without its consent is always illegal. Even, for example, when in 1960, Mossad agents captured Adolf Eichmann in Argentina and flew him to Israel where he was tried and executed. Argentina complained loudly about the violation of sovereignty until Israel quietly offered a generous settlement.

The current US practice of "extraordinary rendition" involves a mix of deportations and abductions. Six days after the terrorist atrocities of September 11, 2001, George W. Bush signed a presidential finding that provided the CIA with broad authorization to disrupt terrorist activity, including by killing, capturing or detaining Al Qaeda members anywhere in the world. On this basis, the CIA began secretly transferring suspects, either to the intelligence services of countries notorious for torture, or to clandestine prisons located outside of the United States and, therefore, beyond the reach-or at least the scrutiny-of US courts.

Arar and others

In September 2002, Maher Arar-a Canadian who is also Syrian by virtue of that country's refusal to accept renunciations of citizenship-was arrested while transiting through New York's JFK Airport. After twelve days of questioning, he was taken to Syria where he was imprisoned for one year without charge. An independent fact-finder appointed by a Canadian judicial inquiry has determined conclusively that Arar was tortured, including by being beaten on the palms and wrists with a steel cable two inches thick and being confined for ten months to a cell measuring six feet long, three feet wide and seven feet high.

Other terrorist suspects have been captured in Pakistan and moved elsewhere with the apparent consent of the government in Islamabad. Benyam Mohammed al-Habashi, an Ethiopian-born British resident, was taken to Morocco where, he claims, a scalpel was applied to his penis. Khalid Shaikh Mohammed, the alleged mastermind of the September 11, 2001 attacks, disappeared into US custody in March 2003; the New York Times later reported that he was subjected to "graduated levels of force, including a technique known as 'water boarding,' in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown." And in Macedonia, a German citizen named Khaled al-Masri was arrested, handed over to US agents and transferred to a secret CIA prison in Afghanistan where he, too, claims to have been tortured. Although the CIA soon realized it had the wrong man, al-Masri languished in prison for five months before being released.

Other renditions have involved straight forward abductions. In 2002, the Bosnian Supreme Court found six Algerians innocent of terrorist plotting and ordered their release. As the men left prison, they were seized by masked men, bundled into unmarked cars, and then flown to Guantanamo Bay. In 2003, Islamic cleric Osama Mustafa Hassan Nasr was abducted from Milan while under Italian surveillance and flown to Egypt where, he claims, he was tortured. The Italian authorities, incensed at this interference in their own investigation, have issued arrest warrants for nineteen CIA agents.

An additional form of rendition has involved the transfer of detainees out of occupied, pre-"sovereign" Iraq in violation of a provision in the Fourth Geneva Convention that unequivocally prohibits "individual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . regardless of their motive". In October 2004, the Washington Post reported that a legal opinion prepared by the US Department of Justice had-in a completely Orwellian manner-reinterpreted this provision as actually allowing such transfers. A further violation occurred when the suspects, before being transferred out of the Iraq, were never registered as detainees, and were moved around within and between prisons, to conceal their existence from the International Committee of the Red Cross.

Gulag parallels

The detainees from Iraq may have ended up in the secret CIA prisons, which the Washington Post reports are, or were, located in at least eight countries including Thailand, Afghanistan and "several democracies in Eastern Europe". Human Rights Watch has placed them in Poland and Romania.

The parallels to these secret prisons-the Soviet Gulag and the Latin American "disappearances"-are obvious, as is their international illegality. Secret prisons contravene the prohibition on arbitrary arrest or detention set out in the Universal Declaration of Human Rights and numerous treaties, including the European Convention on Human Rights.

It is this latter aspect that has attracted the attention of the Council of Europe and European Parliament.

The Council of Europe has instructed its 46 member states to reveal what they know about the flights and prisons. Any government involved in these activities could see its membership on the Council suspended-an approbation which has historically been reserved for gross violations of human rights, such those which occurred in Greece after the military coup of 1967.

European governments are concerned about how revelations of collusion with the CIA might affect their domestic popularity. A recent Associated Press/Ipsos poll showed that fewer than one-in-three Western Europeans think torture is "sometimes" justified. Negative views of the United States have also become the norm. The Pew Global Attitudes Project determined that only 41 percent of Germans had a favourable opinion of the United States in 2005, as compared to 78 percent in 1999-2000. Favourable opinion had less distance to fall in France, from 62 percent to 43 percent, while in Britain it went from 83 to 55 percent during the same period.

These numbers-and the declining willingness of European governments to cooperate on other matters-explain why Secretary of State Condoleezza Rice last month strenuously denied that the United States engages in torture. The denial apparently satisfied European leaders, though it should not have. Rice failed to address the contracting-out of torture to non-Americans, the sharp distinction between the international definition of torture and the more flexible definition used by the United States, and the Bush administration's view that any method of interrogation may still be used if authorised by the president.

What is torture?

The Torture Convention defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person". The Bush Administration prefers a standard articulated by the Justice Department in an August 2002 memorandum, namely that, to constitute torture, the pain caused "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or even death." Many methods of what is generally understood as "torture" would be permitted by this definition.

When that legal opinion became public, it was retracted and replaced by an ostensibly moderated document. However, the second memorandum refused to address a key aspect of the first, namely its expansive interpretation of the president's powers to ignore or override domestic legislation and even international law, and to apply whichever definition of torture he sees fit.

The August 2002 opinion was written by John Yoo, now a law professor at Berkeley, who had the following exchange with University of Notre Dame professor Douglas Cassel during a debate in Chicago last month:

It is this extreme privileging of executive power that has enabled the CIA to maintain its list of "enhanced" interrogation techniques, which include water boarding, for use in clandestine operations approved by the president. And it is this that enables Rice to deny the use of torture without, at least in her view, lying to foreign ministers and heads of state.

Aiding and abetting

Not all Americans agree with their government's approach. Senator John McCain, who was tortured by the North Vietnamese, describes water boarding as "torture, very exquisite torture." Last autumn, McCain sponsored legislation confirming that "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment".

The more encompassing language of McCain's legislation clearly extends to methods such as water boarding. The legislation was fiercely opposed by Vice President Dick Cheney, who-by invoking the threat of a presidential veto-successfully negotiated some important loopholes. The legislation does not ban torture contracted out to other countries. It provides US government employees with legal immunity for acts of torture that were "officially authorized and determined to be lawful at the time that they were conducted". And it denies the right of detainees at Guantanamo Bay to contest their imprisonment in federal court, thus overturning a pivotal July 2004 US Supreme Court decision.

What's more, when Bush signed McCain's bill, he issued a statement declaring the new law would, again, be interpreted within the broader context of the president's powers to protect national security-in other words, that any method of interrogation may still be used, if and when Bush deems it necessary. This outright rejection of Congressional intent is breathtaking; as Sidney Blumenthal recently observed, it reflects "a basic ideology of absolute power".

The willingness of European leaders to accept Rice's assurances reflects a desire to end a scandal that touches on their own apparent complicity. According to some reports, CIA aircraft have used British airports on over 200 occasions since September 2001 and Irish and German airports even more often. British agents have allegedly conducted interrogations under threat of torture, at Guatanamo and elsewhere. According to Al-Habashi, MI6 agents visited him in Pakistan and threatened that he would be "tortured by Arabs".

And it seems the British government has used information obtained by other governments through torture. Craig Murray, a former British ambassador to Uzbekistan, has posted secret documents on his website that, if authentic, show British officials deciding that information obtained through torture by other governments could be used for British intelligence purposes. The documents are all the more troubling because Uzbekistan is notorious for using especially horrific methods of torture, such as immersing detainees in boiling water.

The Torture Convention requires its parties to "ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture." It thus affirms a basic principle of criminal law: that those who aid or abet a crime are criminals themselves.

Canadian connections

Canada ratified the Torture Convention in 1987. Torture was explicitly made a crime through Section 269.1 of the Criminal Code. And Section 21.1 of the Criminal Code has clear provisions on the aiding and abetting of crimes, which include as a "a party to an offence" everyone who "does or omits to do anything for the purpose of aiding any person to commit it."

Today, some Canadian politicians might have some reason to worry about these provisions. In December 2005, it was reported that seven or more aircraft linked to the CIA had recently used Canadian airports on at least 55 occasions, including refuelling stops in Newfoundland and Nunavut. Many more aircraft, presumably, have flown through sovereign Canadian airspace, given that the shortest flight-lines from the United States to Europe or the Middle East cross this country's vast territory.

When asked about the matter last month, Prime Minister Paul Martin said that he had "checked with the Deputy Prime Minister, checked with the officials in charge, and there are absolutely no indications that anything of that kind is occurring."

The Deputy Prime Minister, Anne McLellan, is also Minister for Public Safety and Emergency Preparedness and, in that capacity, responsible for the Canada Border Services Agency. For her part, McLellan said she was investigating the questionable flights. But she also asked for patience: "We are now in the process of following up on what we know about any of those, but as you can imagine, 55, it takes time to determine whether there's anything unusual in relation to any of those named flights."

It is likely that Martin and McLellan were simply trying to punt an embarrassing story past the current election campaign. But it is also possible that they or their officials knew-or chose not to know-that the flights were taking place, and that individuals on board were being involuntarily taken to secret CIA prisons or to foreign countries notorious for torture. If so, their evasive language could be rooted in concern for their personal responsibility, not just under Canadian law, but also in foreign courts, since all countries have universal jurisdiction over the crime of complicity in torture. For this reason, when Martin and McClellan cease to be ministers and lose the immunities attached to high office, they might wish to avoid foreign travel, at least to human-rights-respecting states.

Canadians deserve answers

It is even possible that some of the renditions and mistreatments could be considered war crimes, including the transfer of detainees out of occupied Iraq, or any mistreatment of detainees who deserved the status of prisoner of war. Facilitating war crimes is a crime under the Rome Statute of the International Criminal Court, which raises the additional possibility, however remote, of a trial one day in The Hague.

Again, these are only possibilities. I do not want to overstate the legal situation. But at the same time, I believe Canadians deserve some answers, and soon. What role, if any, has the Canadian government played in facilitating "extraordinary renditions", including allowing the use of our airports and airspace? And if a convincing answer to this question is not available before the federal election, then the least Prime Minister Martin should do is to state, promptly and unequivocally, that his government will not allow CIA aircraft to land at Canadian airports or enter Canadian airspace-until the matter has been properly and publicly investigated.

For obvious reasons, Conservative Party leader Stephen Harper should be asked to make a similar statement.

Colin Powell's reference to Casablanca was misplaced. In that movie, the inspector's comments are amusing only because he's speaking about gambling, a relatively innocuous activity. The deliberate infliction of severe pain and suffering on another human being is hardly a frivolous matter, especially not when our democratically-elected leaders might be complicit in this most inhumane crime. In an important sense, if our democratic governments have been complicit in torture, we are all torturers now. That is, unless we refuse to be complicit in this abominable behaviour. Human rights must constantly be defended against those who seek to violate or undermine them, or who simply take the easy way out of acquiescing in violations committed by others. Democracy, the very essence of our societies, requires constant defending, too.

Michael Byers is Professor of Political Science & Canada Research Chair in Global Politics and International Law, University of British Columbia. He is the author of War Law: Understanding International Law and Armed Conflict (Douglas & McIntyre).  [Tyee]

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