While debate continues in Washington over whether the United States should arm the Ukrainian government in its war against the people of the eastern regions of its territory, there remains a bit of a disconnect over the reality that Ukraine is already using cluster munitions that are banned by an international treaty that has been in effect since 2010. In important ways, the U.S. provides the diplomatic cover for Ukraine to use these munitions, if not the weapons themselves.
Last week, the Organization for Security and Cooperation in Europe’s Special Monitoring Mission to Ukraine (SMM) reported that it has uncovered evidence that cluster bombs have been used in the shelling of civilian neighborhoods in Luhansk:
The SMM saw considerable damage caused by the impacts of rocket shelling, such as broken windows, fences, gates and walls. The SMM assessed that some of the damage to the buildings, e.g. a series of parallel rows of strike marks on a gate and wall, were consistent with damage typically caused by shrapnel elements from cluster munition. According to the SMM’s assessment, a hole in a roof of a house was caused by the impact of what appears to be a bomblet, with small calibre.
The SMM discovered parts of rockets, including engines, fins and cargo compartments, in the front and backyards of several houses; the cargo compartment in particular is typical of a rocket carrying cluster munitions. Some parts sighted by the SMM at the impact site (1.5 cm white metal fragments, 6 by 3 cm black metal fragments of bomblets cases) are typical for cluster munition. The SMM identified them as parts consistent with 9M55K model “Smerch” rockets (calibre 300mm). The SMM observed a crater (diameter approximately 4m, depth approximately 3m) at the backyard of the house located at Dekabristiv Street 106 which had been caused by the explosion of a “Smerch” rocket, according to the SMM’s assessment.
Following a report last year by Human Rights Watch alleging “widespread use of cluster munitions” by “Ukrainian government forces,” the OSCE had raised doubts about the veracity of these claims. As Deutsche Welle reported on October 23, 2014,
Michael Bociurkiw, spokesman for the OSCE mission in Ukraine, also denied that the Ukrainian military had used cluster bombs. “We have around 90 observers in eastern Ukraine,” he told DW. “If we had encountered anything like that, we would have reported it, but that hasn’t happened. Everything we can say about ammunition and shelling is in our daily reports.”
It now appears however that the OSCE is conceding that the Ukrainian government, which came to power following a violent U.S.-backed coup d’etat that toppled the democratically elected Viktor Yanukovych last February, is in fact using these heinous weapons against civilian populations.
Despite being banned under international law for their indiscriminate and disproportionate effects on civilians, they are a particular favorite of the United States, which has used them in Afghanistan, Albania, Bosnia and Herzegovina, Cambodia, Grenada, Iran, Iraq, Kuwait, Lao PDR, Lebanon, Libya, Saudi Arabia, Sudan, Vietnam, Yemen, former Yugoslavia (Kosovo, Montenegro, Serbia). No other country on earth comes close to using these weapons so extensively.
As International Campaign to Ban Landmines – Cluster Munition Coalition (ICBL-CMC) describes them,
A cluster bomb is a weapon that can contain up to several hundred small explosive bomblets. Dropped from the air or fired from the ground, cluster bombs break open in mid-air and scatter these bomblets over a wide area. Anyone within the strike zone is likely to be injured or killed, no matter if they are military or civilian. Many bomblets fail to explode as intended, leaving behind huge quantities of de facto landmines which continue to kill for years or even decades after their use.
Used in more than 35 countries, cluster bombs have killed and injured tens of thousands of civilians and devastated the livelihoods of countless more.
Senator John McCain, who serves as a Chairman of the Senate Committee on Armed Services, claimed last week that the United States is partly to blame for Ukraine’s use of cluster bombs since it hasn’t provided the country with other weapons.
“I think that if we had provided them with the weapons they need, they wouldn’t have felt they had to use cluster bombs. So, it’s partially our fault,” McCain said.
Perhaps more importantly than this, the United States provides Ukraine with unwavering diplomatic and political support, shielding the Kiev regime from criticism. Further, since last spring, the CIA has been directly working with the Ukrainian government on counter-insurgency tactics and on establishing a security apparatus. As AFP reported in May 2014,
Dozens of specialists from the US Central Intelligence Agency and Federal Bureau of Investigation are advising the Ukrainian government, a German newspaper reported Sunday.
Citing unnamed German security sources, Bild am Sonntag said the CIA and FBI agents were helping Kiev end the rebellion in the east of Ukraine and set up a functioning security structure.
The revelations of CIA involvement came following a visit to Kiev by CIA director John Brennan in April 2014, which the White House described as “routine,” but was condemned by Moscow as more U.S. meddling in the country.
Considering that the United States has long defended cluster bombs publicly and vehemently as useful tools in maintaining American hegemony in the world, is it any wonder that the Ukrainian government — being advised by the United States — would feel justified in using these bombs against civilians?
Indeed, according to the Pentagon’s 2008 policy, cluster munitions can actually be considered humane weapons. “Because future adversaries will likely use civilian shields for military targets – for example by locating a military target on the roof of an occupied building – use of unitary weapons could result in more civilian casualties and damage than cluster munitions,” the policy claims. “Blanket elimination of cluster munitions is therefore unacceptable due not only to negative military consequences but also due to potential negative consequences for civilians.”
The U.S government has effectively rejected the international ban on cluster munitions as inapplicable to the United States. In justifying the U.S.’s use of cluster bombs and its refusal to accede to the Convention on Cluster Munitions, Secretary of Defense Robert Gates said in 2008,
The U.S. did not participate in the Cluster Munitions Convention negotiations because we believe that cluster munitions are an integral part of our and many of our coalition partners’ military operations. The elimination of cluster munitions from our stockpiles would put the lives of our soldiers and those of our coalition partners at risk. There are no substitute munitions, and some of the possible alternatives could actually increase the damage that results from an attack.
In November 2009, an Obama administration State Department official said that “many States, including the United States, have determined that their national security interests cannot be fully ensured consistent with the terms of the [Convention].”
U.S. firms have also invested heavily in these banned weapons, spending at least half of the estimated $27 billion on producing cluster bombs from 2011 to 2014. While it is unclear what exactly is driving that increase, rights groups have reported on the recent use of cluster munitions in both Syria and eastern Ukraine.
“We’re seeing an increase in the total value of investment from just a year ago, so that’s a big disappointment,” Amy Little, a campaign manager at the Cluster Munition Coalition, a global advocacy network that includes PAX, told MintPress News in late 2014.
With the U.S. government the most vocal defender of these weapons and U.S. firms the most heavily invested in their production, it seems that it may be also the most instrumental in undermining the international norm against their use, thereby enabling the Ukrainian regime to drop them on its own people with impunity.
Following an official visit to the Guantanamo detention facility this week, a delegation of parliamentarians from the Organization for Security and Cooperation in Europe called the prison “a dark spot on the United States’ reputation in the spheres of human rights and rule of law.”
In a joint statement, the chair and vice-chair of the OSCE Parliamentary Assembly’s human rights committee, Isabel Santos and Mehmet Sevki Kulkuloglu, said,
The detention of people under the traditional laws of war is not compatible with the modern fight against terrorism. The unfortunate application of this legal theory by the United States means that inmates could be held indefinitely, awaiting the end of a fight that does not have a clear-cut end point.
Even those who have faced charges in front of military commissions were subject to a changing legal context and serious restrictions related to classified material, all of which raises additional concerns regarding the transparency of the process and detainees’ ability to mount a defense in a fair trial.
Only a limited number of the remaining 122 detainees at Guantanamo have been charged or are expected to face charges in front of a military commission, the delegation noted. Citing the laws of war, the U.S. government has asserted that detainees can be held until the end of hostilities, a potential life sentence given the unclear and amorphous goals of the war on terror.
Although the delegation traveled to Guantanamo partly to ascertain the status and treatment of remaining detainees, it was not authorized to speak to inmates. Instead, they were given a tour of the facilities by military personnel on January 27 and met with officials from the Joint Task Force. They also viewed part of the military commission trial of Abd al Hadi al-Iraqi by closed circuit and met with senior officials from the Department of State and the Department of Defense in Washington ahead of their visit to Guantanamo Bay.
While recognizing progress has been made in relocating detainees from Guantanamo, the delegation noted that much remains to be done. “We applaud the commitment of the U.S. government to close the facility, but the United States cannot achieve this alone. It requires the support of all OSCE countries,” said Santos and Kulkuloglu.
Earlier in the week, another European body, the Parliamentary Assembly of the Council of Europe, issued a report blasting the NSA’s mass surveillance practices disclosed by whistleblower Edward Snowden as threats against “fundamental human rights” that do not substantially contribute to the prevention of terrorist attacks.
It further said it is “deeply concerned” by the “far-reaching, technologically advanced systems” used by the United States to collect, store and analyze the data of private citizens. It describes the scale of spying by the NSA as “stunning.”
The report and resolution approved by the assembly’s Legal Affairs Committee calls for:
- the collection of personal data without consent only following “a court order granted on the basis of reasonable suspicion”
- “credible, effective protection” for whistle-blowers exposing unlawful surveillance
better judicial and parliamentary control of intelligence services
- an “intelligence codex” defining mutual obligations that secret services could opt into
- an inquiry into member states’ use of mass surveillance using powers under the European Convention on Human Rights
It also criticizes “the reluctance of the competent US authorities and their European counterparts to contribute to the clarification of the facts, including their refusal to attend hearings organised by the Assembly and the European Parliament, as well as the harsh treatment of whistle-blower Edward Snowden, [that] does not contribute to restoring mutual trust and public confidence.”
Despite these welcome moves by Europeans to compel greater U.S. compliance with international norms, the continent as a whole continues to fall short of what is needed to rein the world’s rogue superpower, particularly as it relates to torture and extraordinary rendition. As Amnesty International points out in a briefing paper issued Jan. 20,
European states implicated in the US Central Intelligence Agency’s (CIA) rendition and secret detention programmes have equivocated about their roles in these operations, relied on secrecy laws to decline comment, or simply flatly denied any involvement in them. Not one has conducted a genuinely effective, broad-based investigation into the role their government played in these operations, let alone held state actors fully accountable and provided victims with an effective remedy. Europe’s assistance in facilitating the human rights violations attendant to the US operations – illegal abduction and transfer, secret detention, enforced disappearance, and torture and other ill-treatment — has long been an “open secret,” with various governments seeking to shield themselves from accountability based on unsubstantiated “national security” grounds, the dubious invocation of “state secrets,” or outright lies.
Amnesty calls on
all European governments implicated in the CIA’s illegal rendition, secret detention and interrogation operations – including, among others, Germany, Lithuanian, Macedonia, Poland, Romania, and UK – to:
Conduct an effective, broad-based investigation as a matter of urgency into their involvement in these operations, with a view toward reforming the laws, policies, and practices that permitted such cooperation;
Ensure that those state actors and any foreign agents responsible for crimes under domestic and international law such as torture and enforced disappearance on the territories of European states are criminally charged and held accountable after fair trials;
Afford victims of the human rights violations attendant to these operations a full and effective remedy.
“Without European help, the USA would not have been able to secretly detain and torture people for so many years. The Senate report makes it abundantly clear that foreign governments were essential to the ‘success’ of the CIA operations – and evidence that has been mounting for nearly a decade points to key European allies,” said Julia Hall, Amnesty International’s expert on counter-terrorism and human rights.
Despite having made nuclear non-proliferation and disarmament a centerpiece of his early foreign policy after coming to office six years ago, President Obama is now earning the wrath of anti-nuclear campaigners for simply paying lip service to his Prague 2009 pledge to “secure a world free of nuclear weapons” – what he once called “the world’s worst weapons” – while instead moving to modernize the U.S. nuclear arsenal.
Rather than pushing for disarmament as once promised, the Obama administration is engaging in extensive atomic rebuilding and refurbishing of the U.S. nuclear force to the tune of an estimated trillion dollars in the coming decades, and Obama recently nominated as his new secretary of defense a man long committed to such a course of action.
As Boston Globe columnist James Carroll put it recently,
Mark these days. A long-dreaded transformation from hope to doom is taking place as the United States of America ushers the world onto the no-turning-back road of nuclear perdition. Once, we could believe there was another way to go. Indeed, we were invited to take that path by the man who is, even today, overseeing the blocking of it, probably forever.
Carroll went on to quote Obama’s historic 2009 address in Prague on nuclear abolition.
“As the only nuclear power to have used a nuclear weapon,” Obama said,
the United States has a moral responsibility to act… So today, I state clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons. I’m not naive. This goal will not be reached quickly – perhaps not in my lifetime. It will take patience and persistence. But now, we, too, must ignore the voices who tell us that the world cannot change. We have to insist, ‘Yes, we can…’
“I know,” he continued,
that there are some who will question whether we can act on such a broad agenda. There are those who doubt whether true international cooperation is possible… and there are those who hear talk of a world without nuclear weapons and doubt whether it’s worth setting a goal that seems impossible to achieve. But make no mistake. We know where that road leads.
Indeed, it is all too clear where that road leads.
At the third Humanitarian Impact of Nuclear Weapons Conference held in Vienna, Austria last month, journalist Eric Schlosser emphasized that it’s a miracle there hasn’t yet been a catastrophic accident involving nuclear weapons, pointing out however that “The problem with luck is that eventually it runs out.”
He offered one mishap out of hundreds that have occurred over the years: the 1961 North Carolina incident in which a hydrogen bomb fell out of a disintegrating B-52 bomber, which nearly fully detonated a four-megaton hydrogen bomb.
The chances of a similar mishap taking place today are compounded by the fact that the U.S. nuclear arsenal is aging and the staff tasked with securing these weapons are poorly trained and reportedly suffering from major morale problems.
Warheads in the nation’s stockpile are an average of 27 years old, and military strategists are raising serious concerns about their reliability. As John Hamre, Deputy Secretary of Defense in the Clinton administration and now president of the Center for Strategic and International Studies, recently said, “We have the worst of all worlds: older weapons and large inventories that we are retaining because we are worried about their reliability.”
Further, the military has not prioritized the maintenance of these weapons, leading to even greater nuclear insecurity.
“The Air Force has not kept its ICBMs manned or maintained properly,” says Bruce Blair, a former missileer and cofounder of the anti-nuclear group Global Zero. Nuclear bases that were once the military’s crown jewels are now “little orphanages that get scraps for dinner,” he says. And morale is “abysmal.”
As a recent article in Mother Jones explained,
Blair’s organization wants to eliminate nukes, but he argues that while we still have them, it’s imperative that we invest in maintenance, training, and personnel to avoid catastrophe: An accident resulting from human error, he says, may be actually more likely today because the weapons are so unlikely to be used. Without the urgent sense of purpose the Cold War provided, the young men (and a handful of women) who work with the world’s most dangerous weapons are left logging their 24-hour shifts under subpar conditions—with all the dangers that follow.
In August 2013, Air Force commanders investigated two officers in the ICBM program suspected of using ecstasy and amphetamines. A search of the officers’ phones revealed more trouble: They and other missileers were sharing answers for the required monthly exams that test their knowledge of things like security procedures and the proper handling of classified launch codes. Ultimately, 98 missileers were implicated for cheating or failure to report it. Nine officers were stripped of their commands, and Colonel Robert Stanley, the commander of Malmstrom’s missile wing, resigned.
While these realities of poor training, test cheating and drug abuse scandals, lackluster maintenance and aging weapons make clear the need to do something to better prevent a nuclear catastrophe from taking place, campaigners take issue with the Obama administration’s proposal to inject billions of dollars into modernizing these facilities and retraining staff.
As Theresa Shaffer, the Security Outreach Associate for Physicians for Social Responsibility, points out in a recent column,
The 2015 “CRomnibus” appropriations bill which passed in the House of Representatives and which President Obama has backed ahead of the Senate vote, does not accomplish these things. President Obama has repeatedly stated the need to secure radiological material worldwide in order to prevent a terrorist or criminal from fabricating a dirty bomb. Yet in this 2015 omnibus bill, funding to combat the proliferation of nuclear materials to terrorists and criminals was cut by 17% from 2014, while at the same time spending on nuclear weapons increased by 5% from last year.
“A better idea,” she continues,
to resolve the safety issues affecting our nuclear arsenal could be to use those funds to actually secure and eliminate radiological materials worldwide and simply work on getting rid of nuclear weapons rather than injecting more money into making new ones. The Congressional Budget Office estimates that $355 billion will be spent on modernizing the nation’s nuclear forces from 2014-2023. Pressure should be placed on the new Congress come January to reduce spending on nuclear weapons in the 2016 budget, since these weapons pose more of a risk than an asset.
Meanwhile, as Obama betrays his earlier pledges to work towards a nuclear arms-free world, many within the international community are doing just that, by building a global consensus and strengthening the international norm against these weapons.
The government of Austria hosted the third international conference on the humanitarian consequences of nuclear weapons on December 8-9, 2014 in Vienna. The conference aimed to bolster the global nuclear disarmament and non-proliferation regime by contributing to the growing momentum to prioritize the humanitarian imperative in all international efforts on nuclear non-proliferation and nuclear disarmament.
The conference explored the impacts of nuclear weapon explosions, including nuclear testing; the risks of nuclear weapons use; challenges and capabilities regarding the use of nuclear weapons; and existing international norms and laws.
Nadja Schmidt, representing the International Campaign to Abolish Nuclear Weapons (ICAN), pointed out that within the existing legal framework on nuclear weapons, there is currently a lack of an instrument that explicitly characterizes nuclear weapons as unacceptable under international law.
“Our next step as supporters of the humanitarian initiative should be to explore the best way to address this legal deficit,” she said, noting that “the time has come to start a diplomatic process to negotiate a legally-binding instrument prohibiting nuclear weapons.”
The ICAN statement continued:
This is not a radical proposal. Indiscriminate weapons get banned. We have done it before with other weapon systems, including biological and chemical weapons.
This should not be a controversial proposal. An international prohibition is the logical outcome of an examination of the risks and consequences of nuclear weapons detonation. A new legal instrument prohibiting nuclear weapons would constitute a long overdue implementation of the Non-Proliferation Treaty.
Also participating in the conference was the global network of lawmakers known as the Parliamentarians for Nuclear Non-Proliferation and Disarmament (PNND), an international cross-party network of over 800 parliamentarians from more than 80 countries.
The parliamentary roundtable during the Vienna conference was chaired by PNND Co-President Christine Muttonen, who noted in her opening remarks that parliamentarians are in a unique position to “interact and co-operate with civil society,” as well as to “influence and strengthen government positions” on nuclear disarmament.
“Parliaments worldwide are doing this already,” she said. “Now it is time to better connect ourselves, to exchange experiences and best practices and to discuss the possibilities of joint action.”
The weekend before this conference, the ICAN hosted a Civil Society Forum, which was open to NGO and governmental representatives. Campaigners, activists, experts, public figures, and survivors gathered to learn and to teach and to build momentum to end the era of nuclear weapons.
An issue discussed at length at the ICAN forum was the Marshall Islands’ ongoing lawsuit against the United States and eight other nuclear powers. The lawsuit, filed at the International Court of Justice (ICJ) in April 2014, denounces the 60-plus nuclear tests that were conducted on the small island state’s territory between 1946 and 1958, and seeks to hold the U.S. accountable for violating the 1968 Nuclear Non-Proliferation Treaty by failing to disarm as agreed to in the treaty.
The Marshall Islands case has received support from many different organizations around the world. One supporter is the Nuclear Age Peace Foundation (NAPF), whose president, David Krieger, said: “The Marshall Islands is a small, gutsy country. It is not a country that will be bullied, nor is it one that will give up.”
“It knows what is at stake with nuclear weapons,” he continued, “and is fighting in the courtroom for humanity’s survival. The people of the Marshall Islands deserve our support and appreciation for taking this fight into the U.S. Federal Court and to the International Court of Justice, the highest court in the world.”
Russia, which along with the United States retains the bulk of the world’s nuclear arsenal, recently offered a reminder of which country invented these heinous weapons and which is the only country to have used them. Sergey Naryshkin, the Russian Lower House speaker, told the Russian History Society last month that he wants to initiate an international investigation into the U.S.’s 1945 nuclear bombing of Hiroshima and Nagasaki as a possible crime against humanity.
“Next year we will have the 70th anniversary of the Nuremberg Trial and also the same anniversary of the first and only nuclear bombings of two civilian cities – Hiroshima and Nagasaki,” he said. “It is not incidental that I mention these events together. I think we should discuss this topic together with lawyers and specialists in international law – for crimes against humanity have no statute of limitation.”
Naryshkin recalled that the nuclear attacks on Hiroshima and Nagasaki were not militarily justifiable, as the defeat of Japan was effectively decided after the Soviet Army’s victories in Manchuria.
“The nuclear bombing of two peaceful cities was a pure act of intimidation resulting in the deaths of several thousand Japanese civilians,” he said.
The restoring of diplomatic relations between the United States and Cuba is an historic and positive development, but with its economic blockade still in place against the island nation, the U.S. remains in violation of international law, as expressed 23 years in a row by nearly unanimous United Nations General Assembly votes against the embargo.
Most recently, on Oct. 28, the General Assembly adopted a resolution – as it has done every year since 1991 – calling for an end to the United States economic, commercial and financial embargo on Cuba. With only the United States and Israel voting against, and three small island states abstaining, a whopping 188 UN Member States voted in favor of ending the embargo. Few other issues on earth receive such universal support.
According to the text, the UN reiterated its call upon countries to refrain from applying laws and regulations, such as the 1996 Helms-Burton Act, which impact the sovereignty of other nations, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation.
Recalling its 22 previous resolutions on the subject, the UN expressed concern that since the adoption of those resolutions, “further measures of that nature aimed at strengthening and extending the economic, commercial and financial embargo against Cuba continue to be promulgated and applied, and concerned also about the adverse effects of such measures on the Cuban people and on Cuban nationals living in other countries.”
It once again urged nations that have applied such laws to repeal or invalidate them as soon as possible, in line with their obligations under the United Nations Charter and international law.
In a press release following the adoption of this resolution, the UN noted:
In recent times, the blockade imposed by the United States against Cuba had been tightened, and its extraterritorial implementation had also been strengthened through the imposition of unprecedented fines, the Minister for Foreign Affairs of Cuba told the Assembly as he introduced the draft resolution. The accumulated economic damages of the blockade totalled $1.1 trillion, based on the price of gold.
Wednesday’s announcement about the change in U.S. policy was lauded around the world, with UN Secretary General Ban Ki-moon welcoming the “very important step” taken by the leaders of the United States and Cuba towards normalizing relations.
“This news is very positive,” Ban said. “I’d like to thank President Barack Obama of the United States and President Raúl Castro for taking this very important step towards normalizing relations.”
The Secretary General of the Organization of American States, José Miguel Insulza, also welcomed the announcement, congratulating Obama “for having taken these historic steps, as necessary as they are courageous, to restore diplomatic relations broken off in 1961.”
He added that “the measures announced today open a path to normalization from which there is no return,” and urged the United States Congress to “take the necessary legislative measures to lift the embargo against Cuba, which remains in force.”
“President Obama has been clear about the need to change a policy that produced neither benefits nor results for 50 years, and only complicated the lives of millions of citizens. We hope that Congress understands this as well,” Insulza said.
Although the U.S. Constitution gives considerable latitude to the president in making foreign policy, which Obama exercised in a big way in moving to restore diplomatic relations with Cuba, lifting the embargo would require legislative action by Congress.
As Obama indicated in his remarks announcing the policy on Wednesday, he has taken virtually all steps that he can take as president to change U.S. policy towards Cuba, short of lifting the economic blockade.
“The embargo,” he said, “that’s been imposed for decades is now codified in legislation. As these changes unfold, I look forward to engaging Congress in an honest and serious debate about lifting the embargo.”
To add your name to an Avaaz petition calling on Congress to lift the embargo, click here.
From the United Nations and the European Union to Human Rights Watch and Amnesty International to the governments of China and Afghanistan, voices are being raised around the world demanding accountability in response to the long-delayed release of the U.S. Senate’s CIA torture report.
The report’s 500-page executive summary — the full 6,000 pages are still classified — details gruesome techniques used against prisoners detained for suspected ties to terrorism, including practices such as near drowning, forcing detainees to stand on broken legs, threatening to kill or rape detainees’ family members, forced “rectal feeding” and “rectal hydration,” and disturbing details on a medieval “black site” prison in Afghanistan known as the Salt Pit, where at least one detainee froze to death.
The brutal interrogation sessions lasted in many cases non-stop for days or weeks at a time, leading to effects such as “hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation,” and produced little to no useful information – raising serious questions about whether the torturers were motivated by genuine intelligence-gathering concerns or were simply acting out of sadism and cruelty.
While some voices being raised, such as those of the UN and Amnesty International, have been explicit in their calls for criminal prosecutions of the architects of the torture policies detailed in the report, others such as the EU and the governments of U.S. allies such as Great Britain are a bit more muted and conciliatory to the U.S. government.
Nevertheless, virtually all are unequivocally condemning the U.S. regime of enforced disappearances, extraordinary rendition, indefinite detention and torture that has defined U.S. counter-terrorism policies since Sept. 11, 2001.
Some of the strongest words have come from the UN Special Rapporteur on Human Rights and Counterterrorism Ben Emmerson, who stated unequivocally on Tuesday that senior officials from the Bush administration who sanctioned crimes, as well as the CIA and U.S. government officials who carried them out, must be prosecuted.
In a statement issued following the release of the report, the UN rapporteur said:
It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.
The fact that the policies revealed in this report were authorised at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.
International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.
He further emphasized the United States’ international obligation to criminally prosecute the architects and perpetrators of the draconian torture methods described in the report:
As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.
It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.
In particular, “The U.S. attorney general is under a legal duty to bring criminal charges against those responsible,” he added.
Zeid Raad al-Hussein, the UN High Commissioner for Human Rights, said that it’s “crystal clear” under international law that the United States has an obligation under the UN Convention against Torture to ensure accountability.
“In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency,” he said.
UN Secretary-General Ban Ki-moon expressed hope that the torture report is the “start of a process” toward prosecutions, because the “prohibition against torture is absolute,” Ban’s spokesman said.
The UN’s calls were echoed by those of Amnesty International, the American Civil Liberties Union and Human Rights Watch, who in separate statements demanded that the individuals responsible for these policies be brought to justice.
Noting that the Senate report “must not be end of story,” Amnesty International lamented that limited Justice Department investigations into CIA interrogations were ended in 2012 with no charges. “Access to justice for those who endured abuses has been systematically blocked by U.S. authorities, including on the grounds of state secrecy,” noted Amnesty.
Said Erika Guevara, Americas Director of Amnesty International:
The declassified information contained in the summary, while limited, is a reminder to the world of the utter failure of the USA to end the impunity enjoyed by those who authorized and used torture and other ill-treatment. This is a wake-up call to the USA, they must disclose the full truth about the human rights violations, hold perpetrators accountable and ensure justice for the victims. This is not a policy nicety, it is a requirement under international law.
The ACLU’s Hini Shamsi stated:
The release of the Senate’s torture report summary is a tipping point and a reminder that the United States has never fully reckoned with a past that includes waterboarding, stress positions, beatings, sleep deprivation, threats of harm to children and other family members, among many devastatingly cruel acts. Once again, Americans, all of us, have an opportunity to choose how we end this story, whether that’s responsibly, with a full return to our laws and values, or shamefully, by failing to act now that the report summary is released. A conclusion that begins to heal wounds and rebuild U.S. credibility as a defender of rights instead of a perpetrator of rights violations consists of five parts, all of which work together to ensure that our nation never tortures again.
Shamsi offered a blueprint for accountability that includes the appointment of a special prosecutor, CIA reform, apologies to victims, and full disclosure.
Human Rights Watch said that President Obama should use his last two years in office to prosecute the crimes that the report has revealed. HRW Executive Director Kenneth Roth noted that “the Senate report summary should forever put to rest CIA denials that it engaged in torture, which is criminal and can never be justified.”
In an op-ed published by Reuters, Roth called out the lawyers of the Bush administration who provided legal rationales for torture, noting that “it is regrettable that those senior George W. Bush administration lawyers have escaped accountability for their complicity in torture, given their obligation as public officials and their ethical duty as lawyers to uphold the law.”
Their twisted justifications were not impartial interpretations of legal provisions but rather a judicial cover for criminality. “At minimum, they should have been disciplined for malpractice, if not prosecuted as accomplices,” wrote Roth.
Prosecution should also include the senior Bush officials who authorized torture and oversaw its use. To President Obama’s credit, he stopped the use of “enhanced interrogation techniques” from the moment he took office six years ago. But he has steadfastly refused to permit a broad investigation of the use of torture after 9/11, allowing only a narrow investigation into unauthorized interrogation techniques that resulted in no prosecutions.
Unless the Senate report’s revelations lead to prosecution of officials, torture will remain a “policy option” for future presidents, noted HRW.
The group described in detail U.S. hypocrisy on the issue of torture, providing an annotated table consisting of past statements of the U.S. government condemning other governments for the very same tactics that it has defended when employed by the CIA and U.S. military.
Noting that for years the U.S. denied that these techniques constituted torture, HRW noted plainly that many clearly do. “International bodies and U.S. courts have repeatedly found that ‘waterboarding’ and other forms of mock execution by asphyxiation constitute torture and are war crimes,” the group pointed out.
Other authorized techniques, including stress positions, hooding during questioning, deprivation of light and auditory stimuli, and use of detainees’ individual phobias (such as fear of dogs) to induce stress, violate the protections afforded all persons in custody – whether combatants or civilians – under the laws of armed conflict and international human rights law, and can amount to torture or “cruel, inhuman, or degrading treatment.” Accordingly, the United Nations Committee against Torture and the UN Special Rapporteur on Torture have clearly stated that these techniques are torture.
The European Union added its two cents on Wednesday saying that the Senate report “raises important questions about the violation of human rights by the U.S. authorities,” according to a statement by European Commission spokeswoman Catherine Ray. Despite the lack of accountability for these violations, Ray essentially praised President Barack Obama for ending the program in 2009 when he took office and for allowing the publication of the Senate’s findings.
“This report is a positive step in confronting publicly and critically the Central Intelligence Agency’s detention and interrogation program,” she said.
EU member states “recognize President Obama’s commitment to use his authority to ensure that these methods are never used again,” she added.
Not to be outdone in this exercise in diplomatic fellatio, the United Kingdom seemed to go out of its way to downplay the seriousness of the crimes described by the Senate report. UK Prime Minister David Cameron said that “after 9/11 there were things that happened that were wrong,” when he was asked about the report.
“Those of us who want to see a safer, more secure world, who want to see this extremism defeated, we won’t succeed if we lose our moral authority, if we lose the things that make our systems work and our countries successful,” Cameron said.
The German government welcomed the report and said that “torture can never be justified.” However, Obama has clearly spoken out against torture and in favor of human rights, according to the statement.
Other governments were less kind.
Asraf Ghani, president of Afghanistan – the site of some of the most deplorable acts of torture and maltreatment detailed in the report – called the report “shocking” and said that the CIA’s brutal interrogation program “violated all accepted norms of human rights in the world.”
President Ghani, who assumed his position in September, added, “There is no justification for such acts and human torturing in the world.”
Frequent targets of U.S. criticism such as China and North Korea also weighed in, using the opportunity to point out that the U.S. is being hypocritical for highlighting their human rights abuses while whitewashing its own.
“As Human Rights Day approaches, high-profile cases of violations within American borders and by its agencies abroad are being scrutinised, especially as it pertains to be a defender of civil liberties globally,” the Chinese state-owned Xinhua News Agency said in a commentary on Tuesday.
North Korea condemned the CIA’s “inhuman torture” methods highlighted in the Senate report. Pyongyang said the revelations posed a major test to the credibility of the UN Security Council, which it accused of “shutting its eyes” to rights violations by one of its permanent members while criticizing North Korea’s rights record.
Newspapers around the world have also raised harsh objections to the U.S. torture program and its attendant impunity that has seemingly become official United States policy. As the International Business Times reported on Wednesday,
Several international media outlets covered the extensive report of the five-year Senate Intelligence Committee investigation into the harsh techniques used to interrogate terrorists after the Sept. 11, 2001 attacks.
In Europe, columnists were angry with the U.S. for broadcasting an image of fairness and freedom while conducting torture behind the scenes. Bild, Germany’s leading tabloid, wrote that the torture report’s verdict that the CIA torture techniques ultimately didn’t work “cannot be beat for uniqueness.” Austria’s Kleine Zeitung ran a front-page photo with a superimposed headline reading “America’s Shame.”
The IBT article continued:
In the United Kingdom, a headline in the Daily Mail summed up its reaction to the report: “A truly black day for the ‘civilized’ West.” The opinion piece said the Senate committee’s release, “demolished the boast of the world’s most powerful democracy that it inhabits a higher moral universe than the terrorists it condemns as barbarians.” …
Spain’s prominent newspaper El País led its homepage with the CIA torture report Wednesday, with multiple stories chronicling what role the Bush administration played in allowing the enhanced interrogation tactics, as well as criticism of the report from former spies. Its main headline read in Spanish: “US uncovers the dirty war of the Bush era.”…
Colombia’s El Tiempo published multiple stories about the CIA torture report, its top headline blasting “The ‘unholy’ methods of the CIA after September 11.” …
Ecuador’s El Universo focused on how the CIA misled Congress. Its top headline read, “The CIA acted ‘more brutal’ than what it told Congress, says report.” Cuba’s official Granma newspaper followed a similar path. It’s website carried the CIA story toward the bottom of its homepage with the headline: “CIA interrogations, more brutal than thought.” …
The privately owned Egyptian daily Al Masry Al Youm featured a report detailing the methods used by the CIA to torture prisoners, highlighting the use of diapers and anal feeding. The Israeli daily Haaretz focused its coverage on the CIA’s citation of an Israeli Supreme Court ruling to justify its legal case for torture.
Seemingly oblivious to the worldwide condemnations of the CIA’s torture program and the seriousness of the international calls for accountability and justice, President Obama used the publication of the Senate report as an opportunity to tout the virtues of the United States, and actually praised the Central Intelligence Agency for its professionalism in carrying out its responsibilities.
In a stomach-turning, hypocrisy-laden statement focused on the well-worn but highly discredited notion of “American Exceptionalism,” Obama said:
Throughout our history, the United States of America has done more than any other nation to stand up for freedom, democracy, and the inherent dignity and human rights of people around the world. As Americans, we owe a profound debt of gratitude to our fellow citizens who serve to keep us safe, among them the dedicated men and women of our intelligence community, including the Central Intelligence Agency. Since the horrific attacks of 9/11, these public servants have worked tirelessly to devastate core al Qaeda, deliver justice to Osama bin Laden, disrupt terrorist operations and thwart terrorist attacks. Solemn rows of stars on the Memorial Wall at the CIA honor those who have given their lives to protect ours. Our intelligence professionals are patriots, and we are safer because of their heroic service and sacrifices.
In the years after 9/11, with legitimate fears of further attacks and with the responsibility to prevent more catastrophic loss of life, the previous administration faced agonizing choices about how to pursue al Qaeda and prevent additional terrorist attacks against our country. As I have said before, our nation did many things right in those difficult years. At the same time, some of the actions that were taken were contrary to our values. That is why I unequivocally banned torture when I took office, because one of our most effective tools in fighting terrorism and keeping Americans safe is staying true to our ideals at home and abroad.
He went on to trumpet his own commitment to human rights in rather misleading and self-serving statements about how he supposedly ended torture and pushed for the publication of the Senate report:
I will continue to use my authority as President to make sure we never resort to those methods again.
As Commander in Chief, I have no greater responsibility than the safety and security of the American people. We will therefore continue to be relentless in our fight against al Qaeda, its affiliates and other violent extremists. We will rely on all elements of our national power, including the power and example of our founding ideals. That is why I have consistently supported the declassification of today’s report. No nation is perfect. But one of the strengths that makes America exceptional is our willingness to openly confront our past, face our imperfections, make changes and do better.
These comments are almost completely false. Obama has neither used his full “authority as President to make sure we never resort to those methods again,” nor “consistently supported the declassification” of the Senate report. In fact, as many Senate Democrats have complained, he has fought tooth and nail to prevent the publication of the report, and more substantially, by blocking prosecutions of the architects and practitioners of the CIA’s torture program, he has virtually ensured that torture will remain a “policy option” for future presidents, as Human Rights Watch has warned.
Rejecting these claims as the empty platitudes and self-serving obfuscations that they are, several grassroots organizations are holding a series of nationwide demonstrations over the next week to demand accountability from the CIA, as well as its sister organization and partner in crime, the NSA.
For a full list of events, click here.
On the heels of a scathing report issued by the United Nations detailing the U.S. government’s lack of compliance with its international obligations on torture, several grassroots campaigns are increasing pressure on the United States to bring its human rights practices more closely in line with international norms.
In issuing its “concluding observations” on the U.S. torture record following the periodic review of U.S. compliance last month, the United Nations Committee against Torture noted that the U.S.’s lack of a specific law at the federal level prohibiting torture is out of step with article 1 of the Convention against Torture (CAT).
The Committee also regretted that the U.S. maintains a restrictive interpretation of the provisions of the CAT, particularly regarding the concept of “prolonged mental harm” related to torture that is prohibited under the treaty. In its concluding observations, issued on November 28, “the Committee recalls that under international law, reservations that are contrary to the object and purpose of a treaty are impermissible.”
The Committee expresses its grave concern over the extraordinary rendition, secret detention and interrogation programme operated by the U.S. Central Intelligence Agency (CIA) between 2001 and 2008, which involved numerous human rights violations, including torture, ill-treatment and enforced disappearance of persons suspected of involvement in terrorism-related crimes. While noting the content and scope of Presidential E.O. 13491, the Committee regrets the scant information provided by the State party with regard to the now shuttered network of secret detention facilities, which formed part of the high-value detainee programme publicly referred to by President Bush on 6 September 2006.
The Committee further regretted “the lack of information provided on the practices of extraordinary rendition and enforced disappearance; and, on the extent of the CIA’s abusive interrogation techniques used on suspected terrorists, such as water-boarding.” In this regard, it noted particular interest in the long-stalled declassification process of the U.S. Senate Select Committee on Intelligence’s report on the CIA’s detention and interrogation program.
The panel called on the Obama administration to release the Senate report on CIA torture “in the most complete and comprehensible form possible.” This comes as Senate Democrats have accused the White House of trying to censor key portions.
Other issues addressed by the UN included the treatment of migrants, including children held in “prison-like detention facilities,” as well as the “widespread prevalence of sexual violence, including rape, in prisons, jails and other places of detention by staff and by other inmates.” The Committee also expressed concern over “the notable gaps in the protection of juveniles in the State party’s criminal justice system.”
Concern was also raised over the high number of preventable deaths of inmates that take place in local jails and prisons in the United States. As the Committee noted,
958 inmates died while in the custody of local jails during 2012, an 8 percent increase from the 889 deaths in 2010. During the same year State prison deaths remained stable with 3,351 reported deaths. The Committee is particularly concerned about reports of inmate deaths occurred as a result of extreme heat exposure while imprisoned in unbearably hot and poor ventilated prison facilities in Arizona, California, Florida, New York, Michigan and Texas (arts. 2, 11 and 16).
To talk more about the UN’s findings, Dr. Jens Modvig, a co-author of the report, appeared on Democracy Now this week. Among other issues, Modvig discussed the topic of police brutality in the USA and the significance of the parents of Michael Brown – the unarmed black youth gunned down by a white police officer in August – testifying to the Committee against Torture.
The Committee “takes an interest in the measures that United States has in place to control excessive use of force and police brutality,” Modvig said. “When we look at the statistics,” he pointed out, “we heard from the United States delegation that during the last five years, a little over 300 hundred cases have been criminally prosecuted of police officers.”
We asked for the resource of these prosecutions but we have not received this information. So, where there’s still doubt as to whether the mechanisms to hold police officers accountable for excessive use of force, police brutality and even police shootings are probably in place. Another issue of importance is whether there is independent oversight bodies that can check up on the way that the power’s administered in the law enforcement. And also here we have some doubts whether police review boards are sufficiently independent. So, these are some of the concerns that committee has expressed vis-a-vis the United States Delegation.
In an effort to increase the level of accountability in the U.S. when it comes to widespread police violence, demonstrations have been taking place across the country, with protests picking up in recent days in response to the failure to indict a white cop in New York who choked to death an innocent black man by the name of Eric Garner last summer.
Civil rights leaders are also calling for a national march on Washington to demand that the federal government intervene in prosecutions of police officers facing criminal charges. The march will take place Saturday, Dec. 13, and the families of both Eric Garner and Michael Brown will attend, according to the Huffington Post.
“We’ll be in Washington, demanding redress,” Al Sharpton said, speaking at the headquarters of the National Action Network in Harlem. He was joined by representatives of the NAACP, the National Urban League and 14 other groups, all of whom are mobilizing for the march on Washington.
When it comes to the issue of CIA torture and the Obama administration’s official policy of impunity that shields human rights abusers from accountability, civil society groups from across the U.S. are organizing a week of grassroots action to highlight CIA crimes, as well as violations of privacy rights being carried out by the National Security Agency.
According to the call to action, “Vigils, protests, workshops, and other events will start nationwide on International Human Rights Day (December 10th) and conclude on Bill of Rights Day (December 15th).”
Events are currently planned in following cities:
— San Francisco, CA (12/15): http://on.fb.me/1yVv0mq
— Oakland, CA
— San Jose, CA (12/10): http://on.fb.me/1rW0mJs
— Berkeley, CA (12/6): http://on.fb.me/1BhbG5y
— Richmond, CA (12/8): http://on.fb.me/1yjiVDS
— Cleveland, OH
— Washington, DC (12/10): http://on.fb.me/1ysOOOg
— Chapel Hill, NC: (12/15) http://on.fb.me/1FQdujW
— Raleigh-Durham, NC:
. — 12/9: http://on.fb.me/1yjiWry
. — 12/10: http://on.fb.me/1FQcGeM
— Miami, FL
Other grassroots initiatives underway include a petition urging Sen. Mark Udall (D-CO) to submit the Senate Intelligence Committee’s torture report to the Congressional Record. Add your name to the petition here.
Also, the Witness Against Torture campaign will gather in Washington, DC on January 11, 2015, to mark the anniversary of the opening of the Guantanamo indefinite detention facility, also known as “Obama’s Forever Prison,” and the13 years of torture that have taken place there. More information here.
The longstanding Obama administration policy of providing officially sanctioned impunity to the architects and practitioners of the U.S. torture regime implemented by the previous administration is coming under increasing pressure, with the United Nations last week reviewing the United States’ compliance with the Convention against Torture and a growing number of voices calling for the U.S. to finally reckon with its troubling background on the use of cruel, degrading and inhuman treatment of prisoners.
Ahead of the U.S.’s review at the UN Committee against Torture, a group of law professors associated with the International Human Rights Clinic at Harvard Law School co-authored a shadow report to the UN, entitled “Failure to Prosecute Senior U.S. Government Officials for Torture Violates International Law.” The report documented how the Obama administration is in flagrant violation of the law by shielding from criminal liability the senior government officials responsible for the post-9/11 U.S. torture program.
The report takes the United States to task for why it has not prosecuted President George Bush (who admitted in his memoir to authorizing the waterboarding of Khalid Sheikh Mohammed); former Justice Department lawyer John Yoo (author of an opinion that offered legal justifications for torture); and former CIA contractor Dr. James Mitchell (reported to have personally waterboarded the prisoner known as Abu Zubaydah).
The report also urges the UN Committee to renew its calls for criminal investigations and prosecution of officials at the highest levels of the chain of command.
Also ahead of the UN review, Human Rights Watch and the ACLU wrote a letter to President Obama urging him to reverse the position articulated by the Bush administration that certain obligations under the Convention against Torture only applied within U.S. territory.
“Within days of taking office in 2009, you took important steps to reverse the previous administration’s harmful record and legacy on torture, including by issuing an executive order reinforcing the ban on torture,” reads the letter. “However, to ensure that such practices are not adopted by future administrations, it is critical that the United States also abandon the distorted interpretations of international law through which the George W. Bush administration sought to justify torture and ill-treatment and transfers to similar abuse.”
In the context of an ongoing dispute over the long-delayed release of a Senate report detailing the defunct U.S. torture regime, a group of Nobel Peace Prize laureates issued an open letter on Oct. 27 to the Obama administration, calling, inter alia, for the United States to fully disclose to the American people “the extent and use of torture and rendition by American soldiers, operatives, and contractors, as well as the authorization of torture and rendition by American officials.”
The laureates also called for the adoption of “firm policy and oversight restating and upholding international law relating to conflict, including the Geneva Convention and the UN Convention against Torture,” noting that Obama’s open admission that the U.S. engaged in torture is “a first step in the US coming to terms with a grim chapter in its history.”
The letter continued:
The subsequent release of the Senate Select Committee on Intelligence summary report will be an opportunity for the country and the world to see, in at least some detail, the extent to which their government and its representatives authorized, ordered and inflicted torture on their fellow human beings. …
When a nation’s leaders condone and even order torture, that nation has lost its way. One need only look to the regimes where torture became a systematic practice – from Imperial Japan and Nazi Germany to the French in Algeria, South Vietnam, the Khmer Rouge and others – to see the ultimate fate of a regime so divorced from their own humanity.
The practices of torture, rendition and imprisonment without due process by the United States have even greater ramifications. The United States, born of the concept of the inherent equality of all before the law, has been since its inception a hallmark that would be emulated by countries and entire regions of the world. For more than two centuries, it has been the enlightened ideals of America’s founders that changed civilization on Earth for the better, and made the US a giant among nations. …
In recent decades, by accepting the flagrant use of torture and other violations of international law in the name of combating terrorism, American leaders have eroded the very freedoms and rights that generations of their young gave their lives to defend. They have again set an example that will be followed by others; only now, it is one that will be used to justify the use of torture by regimes around the world, including against American soldiers in foreign lands. In losing their way, they have made us all vulnerable.
The letter noted that the world will be watching in the coming weeks as the release of the Senate findings on the U.S. torture program brings the country to a crossroads.
“It remains to be seen whether the United States will turn a blind eye to the effects of its actions on its own people and on the rest of the world, or if it will take the necessary steps to recover the standards on which the country was founded, and to once again adhere to the international conventions it helped to bring into being,” wrote the laureates, which included Archbishop Desmond Tutu and F.W. De Klerk of South Africa, Mohammad ElBaradei of Egypt, and Jody Williams of the United States.
A week after this letter was issued, the U.S. midterm elections, which failed to meet a number of important international standards, resulted in the defeat of one of the Senate’s few champions for human rights, Sen. Mark Udall (D-CO). Following his defeat, a chorus of voices has urged Udall to use his congressional immunity – provided by the Constitution’s Speech and Debate clause – to read the Senate’s still-classified 6,000-page CIA torture report into the Congressional record. Udall is reportedly giving serious consideration to taking up this challenge.
Then, of course, there was the UN’s review last week of U.S. compliance (or lack thereof) with the Convention against Torture (CAT), a legally binding treaty to which the United States has subscribed. Every several years signatories to the CAT are required to submit reports to the UN’s Committee against Torture, followed by a question period by the Committee to which the government is able to respond to the following day. It was the U.S.’s turn on Nov. 12 and 13.
As the hearing got underway in Geneva, Agence France-Presse reported:
The delegation faced a barrage of questions from committee members on how the country was dealing with rectifying and providing redress for acknowledged abuses during the “war on terror”.
The US delegation was asked to explain why the US military prison at Guantanamo Bay in Cuba remains open, why many detainees remain there without charge and when Washington plans to shut it down.
The committee members also questioned the treatment of prisoners there, and lack of redress for victims of the widely publicised abuses by US troops at the Abu Ghraib prison in Iraq in the early 2000s.
Beyond the “war on terror” legacy, the committee members raised issues of abuses in US prisons, rape in prisons, the broad use of drawn-out solitary confinement, and long years on death row.
And they asked how Washington could justify its widespread detention of non-violent, non-criminal illegal immigrants, including minors.
And they slammed police brutality that appears to disproportionately affect minorities, such as 18-year-old Michael Brown, who was shot and killed by white police officer Darren Wilson in Ferguson, Missouri last August.
To its credit, the U.S. delegation at the UN issued a high-profile reversal of the previous administration, indicating publicly that, unlike under President George W. Bush, the government has decided that the ban against torture applies not only within the borders of the United States, but also to areas outside of its territorial boundaries, for example at Guantanamo Bay, Cuba – the site of years of wanton human rights abuses including arbitrary detention, torture and murder.
Mary E. McLeod, acting legal adviser for the State Department, stated, “We understand that where the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party.”
“More specifically, to ‘all places that the State Party controls as a governmental authority,’ we have determined that the United States currently exercises such control at the US Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. registered ships and aircraft.”
“While the Obama administration is distancing itself from discredited Bush-era interpretations of the Convention against Torture, it is still unwilling to accept its full obligations under the treaty,” said Laura Pitter, national security counsel at Human Rights Watch. “The U.S. should explicitly accept that the treaty applies anywhere the US exercises ‘effective control,’ including any detention centers overseas.”
During the question period of the UN review, the U.S. delegation was asked about its lack of prosecutions for torture, as well as its generally lackluster attempts to investigate these crimes. UN official Giorgi Tugushi from the former Soviet state of Georgia noted in particular that the Committee had received information that torture victims were not interviewed in the course of the investigation by Assistant U.S. Attorney John Durham into torture.
Attorney General Eric Holder had appointed Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Durham decided, however, that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations,” which ultimately resulted in no prosecutions.
The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” according to Holder.
Tugushi expressed some concern over this result. “The investigation process looked into 101 cases and decided not to prosecute anyone,” Tugushi stated. “So, maybe, you can provide more information on this outcome.”
In response, the Justice Department’s David Bitkower explained:
Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.
After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…
Of course, no specific incidents that Durham may have examined were mentioned by Bitkower.
“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared.
In other words, torture impunity remains official U.S. policy.
A delegation from the United Nations has completed a fact-finding mission to the U.S. city of Detroit, which is currently experiencing large-scale water disconnections, with at least 27,000 households having their water services cut off this year.
The UN delegation, consisting of the Special Rapporteur on housing, Leilani Farha, and the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, visited Detroit from Oct. 18-20 on the invitation of U.S. civil society groups. Noting that 40.7 percent of Detroit’s population live below the poverty level and about 80 percent of the population are African American, the experts said that the water shutoffs disproportionately affect vulnerable people and low-income African Americans.
“Twenty percent of the population is living on 800 USD or less per month, while the average monthly water bill is currently 70.67 USD,” the delegation pointed out. “This is simply unaffordable for thousands of residents, mostly African Americans.”
As the experts further explained in a press release concluding the visit,
Without water, people cannot live a life with dignity – they have no water for drinking, cooking, bathing, flushing toilets and keeping their clothes and houses clean. Despite the fact that water is essential for survival, the city has no data on how many people have been and are living without tap water, let alone information on age, disabilities, chronic illness, race or income level of the affected population.
Denial of access to sufficient quantity of water threatens the rights to adequate housing, life, health, adequate food, integrity of the family. It exacerbates inequalities, stigmatizes people and renders the most vulnerable even more helpless. Lack of access to water and hygiene is also a real threat to public health as certain diseases could widely spread.
In addition, thousands of households are living in fear that their water may be shut off at any time without due notice, that they may have to leave their homes and that children may be taken by child protection services as houses without water are deemed uninhabitable for children. In many cases, unpaid water bills are being attached to property taxes increasing the risk of foreclosure.
We were deeply disturbed to observe the indignity people have faced and continue to live with in one of the wealthiest countries in the world and in a city that was a symbol of America’s prosperity.
The experts also reminded the United States that it is bound by international human rights law and principles, “including the right to life as well as the right to non-discrimination with respect to housing, water and sanitation and the highest attainable standard of health.” These obligations not only apply to the federal government, but to state and municipal governments as well, including the judiciary.
In September, U.S. bankruptcy judge Steven Rhodes threw out a motion to stop Detroit’s mass water shutoffs, declaring that despite “findings of irreparable harm,” there is no “fundamental enforceable right to free or affordable water.”
“We were shocked, impressed by the proportions of the disconnections and by the way that it is affecting the weakest, the poorest and the most vulnerable,” said de Albuquerque at a press conference on Monday.
“I’ve been to rich countries like Japan and Slovenia where basically 99 percent of population have access to water, and I’ve been to poor countries where half the population doesn’t have access to water … but this large-scale retrogression or backwards steps is new for me.” She added, “From a human rights perspective, any retrogression should be seen as a human right violation.”
As the delegation’s joint statement elaborates:
The human rights to safe drinking water and sanitation and to adequate housing both derive from the right to an adequate standard of living which is protected under, inter alia, article 25 of the Universal Declaration of Human Rights which is fully applicable to the United States. In addition, adequate housing and access to safe water are clearly essential to maintain life and health, and the right to life is found in treaties the United States has ratified, including the International Covenant on Civil and Political Rights.
Ensuring freedom from discrimination does not mean that everyone should be treated equally when their circumstances are different. Water and sanitation does not have to be free. It must rather be affordable for all. The price cannot put a household in debt or limit access to essential services such as food or medicine. A human rights framework provides that people should not be deprived of these rights if they cannot pay the bill for reasons beyond their control. Disconnections of water due to non-payment are permissible if it can be shown that the resident is able to pay but is not paying. When people are genuinely unable to pay the bill, it is the State’s obligation to provide urgent measures, including financial assistance, a specially low tariff or subsidies, to ensure access to essential water and sanitation for all. Not doing so amounts to a human rights violation.
Similarly, the human right to adequate housing means that housing must be affordable, including the costs of water, sanitation and other housing-related services. Houses without water and sanitation are unsafe and uninhabitable. They expose residents to disease, exacerbate existing health conditions, and threaten the security of tenure of residents. If costs associated with housing are not in line with income levels, housing is rendered unaffordable for many low-income residents, leading to accumulated arrears which in turn create real risks for foreclosure, eviction and homelessness. This contravenes the State’s obligation to ensure tenants and owners enjoy secure tenure.
The UN officials offered a number of recommendations to the City of Detroit and other relevant authorities, calling for Detroit to “restore water connections to residents unable to pay and vulnerable groups of people, stop further disconnections of water when residents are unable to pay, and provide them the opportunity to seek assistance that must be made available through social assistance schemes.”
Further, the U.S. should adopt, at all levels of government, a mandatory affordability threshold and specific policies should be adopted to ensure specific support to people who live in poverty.
In addition, the federal government should immediately undertake an investigation into the water shutoffs to determine if they are having a disproportionate impact on African Americans and other groups protected against discrimination.
For the full statement and list of recommendations, visit the UN’s Office of the High Commissioner on Human Rights web page.
Testimonies from residents of Detroit coping with the effects of the water shutoffs are available here.
Video of the delegation’s post-visit press conference is on YouTube:
With recent reports indicating that the Obama administration may be maintaining the legal arguments of the previous administration as they pertain to the applicability of international law in counterterrorism operations overseas, as well as leaked news of the much-touted Senate CIA torture report avoiding the assignment of responsibility for these policies, it is growing increasingly obvious that impunity for torture has become undisputed official U.S. policy.
As The New York Times reported over the weekend,
When the Bush administration revealed in 2005 that it was secretly interpreting a treaty ban on “cruel, inhuman or degrading treatment” as not applying to C.I.A. and military prisons overseas, Barack Obama, then a newly elected Democratic senator from Illinois, joined in a bipartisan protest.
Mr. Obama supported legislation to make it clear that American officials were legally barred from using cruelty anywhere in the world. And in a Senate speech, he said enacting such a statute “acknowledges and confirms existing obligations” under the treaty, the United Nations Convention Against Torture.
But the Obama administration has never officially declared its position on the treaty, and now, President Obama’s legal team is debating whether to back away from his earlier view. It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity.
If Obama does decide to continue the policy of denying the Convention Against Torture’s jurisdiction in overseas operations, the message to the world will be received loud and clear that U.S. torturers are indeed above the law – that indeed no legal constraints exist on the U.S. global war on terror, neither its military operations that respect no nation’s sovereignty, its secret black site prisons nor its grotesque regime of enforced disappearances and torture.
While some might argue that it’s unfair to jump to conclusions and important to give Obama the benefit of the doubt until a final decision is made as to whether the treaty is legally binding on the United States regarding human rights obligations, in fact there is little reason to offer such latitude.
After all, the Obama administration has already declared that another landmark human rights accord – the International Covenant on Civil and Political Rights – has no bearing on U.S. overseas operations, drawing a stinging rebuke earlier this year from the UN Human Rights Committee, which monitors compliance with the ICCPR.
As stated in the HRC’s “concluding observations” issued on March 27, 2014:
The Committee regrets that the State party [the United States] continues to maintain the position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory, despite the interpretation to the contrary of article 2, paragraph 1, supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and State practice. The Committee further notes that the State party has only limited avenues to ensure that state and local governments respect and implement the Covenant, and that its provisions have been declared to be non-self-executing at the time of ratification. Taken together, these elements considerably limit the legal reach and practical relevance of the Covenant (art. 2).
In response to this highly restrictive interpretation of the ICCPR which undermines human rights globally, the UN urged the United States to “interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of the object and purpose of the Covenant, and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances.”
The HRC also regretted the lack of accountability for past human rights violations:
The Committee is concerned at the limited number of investigations, prosecutions and convictions of members of the Armed Forces and other agents of the United States Government, including private contractors, for unlawful killings during its international operations, and the use of torture or other cruel, inhuman or degrading treatment or punishment of detainees in United States custody, including outside its territory, as part of the so-called “enhanced interrogation techniques”. While welcoming Presidential Executive Order 13491 of 22 January 2009 terminating the programme of secret detention and interrogation operated by the Central Intelligence Agency (CIA), the Committee notes with concern that all reported investigations into enforced disappearances, torture and other cruel, inhuman or degrading treatment committed in the context of the CIA secret rendition, interrogation and detention programmes were closed in 2012, resulting in only a meagre number of criminal charges being brought against low-level operatives. The Committee is concerned that many details of the CIA programmes remain secret, thereby creating barriers to accountability and redress for victims (arts. 2, 6, 7, 9, 10 and 14).
The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in positions of command, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. The State party should also consider the full incorporation of the doctrine of “command responsibility” in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.
This lack of accountability is expected to continue, with the one comprehensive official attempt to ascertain the level of U.S. criminality in the war on terror – the Senate’s years-long investigation into CIA torture – studiously avoiding the assignment of culpability for these illegal policies.
As McClatchy reported on October 16,
A soon-to-be released Senate report on the CIA doesn’t assess the responsibility of former President George W. Bush or his top aides for any of the abuses of the agency’s detention and interrogation program, avoiding a full public accounting of one of the darkest chapters of the war on terror.
“This report is not about the White House. It’s not about the president. It’s not about criminal liability. It’s about the CIA’s actions or inactions,” said a person familiar with the document, who asked not to be further identified because the executive summary – the only part to that will be made public – still is in the final stages of declassification.
The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.
Despite the lack of accountability for those who actually crafted these illegal torture policies, the United States government had the gall to claim in its “periodic report” recently submitted to the UN Committee Against Torture that it is complying fully with the Convention Against Torture (CAT).
The government claimed [PDF], “U.S. law provides jurisdiction in a number of ways that could be relied on for criminal prosecution of torture and ill-treatment of detainees” and offered a few examples. The problem is, the Justice Department division the government cited as a bulwark against impunity for torture appears to have prosecuted zero public cases of torture against U.S. officials.
So, the government’s periodic report to the UN is basically one lie after another, and for these reasons, it is becoming painfully obvious that the only possibility for accountability may in fact be an international tribunal charged with prosecuting these crimes.
Because the U.S. has so consistently flouted its legally binding obligation under the CAT to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature,” it may be up to the international community to help ensure that an officially sanctioned climate of impunity does not take hold in the United States on the issue of torture.
Under the terms of the CAT (which the U.S. has ratified), a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter. As the Compliance Campaign has previously noted, it’s high time for this adjudication to take place. If it doesn’t, torture impunity will become even further entrenched, with ominous implications for the whole world.