In times of war, nations and individuals can sometimes resort to inhumane treatment of their enemy, which is why there are international conventions on the rights of prisoners. However, in 2004 photos and evidence of torture in the Iraqi prison of Abu Ghraib were revealed to the public by CBS News and The New Yorker[1]. In the same year, three British detainees were released from the Guantánamo Bay detention camp and revealed further torture and abuse at the hands of United States military personnel[2]. Photos and testimonies reveal examples of physical and psychological abuse, including torture, rape, sodomy, religious intolerance, unlawful detention, and in extreme cases, homicide. The US public was shocked by these revelations and numerous investigations and reports proceeded, bringing into question what constitutes torture in cases where a nation is at war and exactly what rights are available to detainees. The US is still trying to deal with these abuses and also to address the rights of those still held in detention without charge or the right to trial.
Article 1 from the Declaration on Protection from Torture defines torture as an act of “severe pain or suffering” that is “intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession.” In regards to Abu Ghraib and Guantánamo, Article 3 goes on to highlight that “exceptional circumstances such as a state of war or a threat of war” may not be used to justify the use of torture[3]. The question of whether this right is absolute, or if there are “no imaginable conditions” where torture might be morally sanctioned is clearly a difficult one. Perhaps there are cases where torture might be considered the lesser of two evils, such as a case where waiving this right would lead to saving hundreds of innocent lives[4]. The problem with this premise is that a decision must be made when torture would be warranted or “necessary”, allowing for human bias and prejudice in making a decision[5]. As in the case of Guantánamo and Abu Ghraib, legal framework was established to provide for exactly this kind of situation where the US administration felt torture was warranted[6]. Given the outcome of Rasul vs. Bush, the released British detainee who revealed the human rights violations occurring in Guantánamo and was ultimately cleared of any wrongdoing or association with terrorist activity, one must question whether the right not to be tortured should not be absolute in order to avoid state powers overstepping this line and abusing innocent detainees in times of conflict[7].
Human rights abuses in the form of physical and psychological ill-treatment of prisoners in Guantánamo and Abu Ghraib have been documented by a number of agencies. The International Committee of the Red Cross was able to conduct interviews with a number of detainees and revealed their findings in a comprehensive report. Ill-treatment included suffocation by water, prolonged stress standing position, beatings, confinement in a box, prolonged nudity, sleep deprivation, prolonged shackling, deaths in custody, and various other forms of humiliating intimidation[8]. In Abu Ghraib, similar examples of torture have been discovered and revealed in photos, although it appears the torturers took advantage of cultural and religious differences of their prisoners, by forcing the detainees into homosexual, feminizing, and other equally offensive acts that degrade certain aspects of the Muslim tradition[9]. What is most troubling is that memorandums of the “Counter-Resistance Strategies” have now been released to the public and reveal that some of these methods of torture were approved and supported by the Department of Defense[10].
The other alarming aspect of those held in detention is that the status of these detainees is considered outside of most standard definitions of prisoners of war or enemy combatants and that they are therefore not charged and are arbitrarily deprived of their liberty, in direct contradiction of the Geneva Conventions of 1949[11]. Under US-signed treaties and international law, detainees have the right to challenge the lawfulness of their detention through habeas corpus petitions, one of the most basic and long standing human rights. However, in the initial stages of the Abu Ghraib and Guantánamo detention centers, US authorities refused to acknowledge this right and claimed that such petitions did not apply to these detainees[12]. This policy is largely responsible for the resulting examples of torture and ill-treatment as detainees remained in these centers without any access to the outside world, each other, or legal representation. Those given responsibility to watch over and extract information from prisoners in the “war on terror” were given unchecked power over their detainees, with little accountability for their actions.
In the case of Abu Ghraib, a number of US soldiers were charged and convicted for the abuses that occurred in this detainee center[13]. When President Obama took office, he made it a priority for his administration to deal with the human rights violations occurring in the Guantánamo facility. The Presidential Executive Order 13492 addressed the illegal detention of detainees still remaining in Guantánamo[14]. Ultimately, it was decided that the best course of action would be to resettle or repatriate detainees who were no longer considered national security risks. Thus far, a number of detainees have been resettled or repatriated, but there still remains many awaiting trial or those considered unfeasible for prosecution but still being held in detention. This last group is still of major concern because their right to a trial has not been fulfilled and they are being held arbitrarily. Although the right to file a habeas corpus petition has been restored to these detainees as a result of task force recommendations, their status is still uncertain and their human rights remain unfulfilled[15].
Just as it is wrong to torture US citizens in order to extract a confession, it is wrong to torture enemy combatants or detainees, because at a basic level the right to live free from torture hinges on the fact that you are a human being. This is outlined in the preamble of the Geneva Conventions where in cases that are not covered by “the law in force” the person “remains under the protection of the principles of humanity and the dictates of the public conscience”[16]. Perhaps the most important step in ensuring that such violations do not occur in the future is a greater degree of transparency. This will require a higher level of information sharing between governments and increased diplomatic efforts so that detainees who reside from many nations around the world are able to be released from detention centers and we can avoid arbitrary detention in the future. What is disappointing in this case is that international human rights law is already in line with basic human rights philosophy and provides protection for enemy combatants and prisoners; but still state powers sought out ways to circumvent these international standards and deprive detainees of their most basic right to human dignity. By doing so they exhibited a complete disregard for historical debate and well established ethical, philosophical, and legal opinion on the practice of torture[17].
[1] Salon Staff. “The Abu Ghraib Files.” Salon. (Mar. 14, 2006) «http://www.salon.com/news/abu_ghraib/2006/03/14/introduction/index.html»
[2] Rose, David. “Revealed: The Full Story of the Guantanamo Britons.” The Observer. (Mar. 14, 2004) «http://www.guardian.co.uk/uk/2004/mar/14/terrorism.guantanamo»
[3] United Nations General Assembly. “Declaration on the Protection of All Persons from Being Subjected to Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment.” (Dec. 9, 1975) «http://www2.ohchr.org/english/law/declarationcat.htm»
[4] Perry, Michael J. “The Idea of Human Rights: Four Inquiries.” (New York: Oxford University Press, 2003): 94
[5] Amnesty International. “USA: Human Dignity Denied: Torture and Accountability in the ‘War on Terror’.” (Oct. 26, 2004): 14 < http://www.amnesty.org/en/library/info/AMR51/145/2004/en>
[6] Department of Justice. “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists.” (July 29, 2009) «http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf»
[7] Supreme Court of the United States. “Rasul et al. v. Bush, President of the United States, et al.” (Apr.-Jun. 2004)
[8] Loane, Geoff. “ICRC Report on the Treatment of Fourteen ‘High Value Detainees’ in CIA Custody.” International Committee of the Red Cross. (Feb. 2007): 8-9
[9] Puar, Jasbir K. “Abu Ghraib: Arguing Against Exceptionalism.” Feminist Studies. Vol. 30, No. 2. (Summer, 2004): 524
[10] Joint Task Force 170. “Memorandum for Commander: Counter-Resistance Strategies.” Department of Defense. (Oct. 11, 2002) «http://www.defense.gov/news/Jun2004/d20040622doc3.pdf»
[11] “ICRD Report” (2007): 23-24
[12] Amnesty International. “Guantanamo and Beyond: The Continuing Pursuit of Unchecked Executive Power.” (May 13, 2005): 16
[13] Shanker, Thom. “The Struggle for Iraq: The Military G.I.s in Iraq are Charged with Abuse of Prisoners.” The New York Times. (mar. 21, 2004) «http://www.nytimes.com/2004/03/21/international/middleeast/21IRAQ.html»
[14] Obama, Barack. “Executive Order 13492-Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities.” (Jan. 22, 2009) «http://www.presidency.ucsb.edu/ws/index.php?pid=85670#axzz1PmSERH00»
[15] Guantanamo Review Task Force. “Final Report.” < http://www.justice.gov/ag/guantanamo-review-final-report.pdf>
[16] “Geneva Conventions.": Protocol II. (June 8, 1977) < http://www.icrc.org/IHL.nsf/1595a804df7efd6bc125641400640d89/d67c3971bcf... [17] Macmaster, Neil. “Torture: from Algiers to Abu Ghraib.” Race and Class. (Jan. 2006): 2