In this interview between human rights lawyer Michael Ratner and political journalist Ellen Ray, Michael Ratner provides a clear explanation of the UN Convention Against Torture—to which the United States is a signatory—which explicitly states that prisoner abuse, up to and including torture, is absolutely prohibited under any circumstances.
Putting aside the fact that sanctioning torture on detainees diminishes us in the eyes of the world; putting aside the fact that torture produces unreliable intelligence; putting aside the fact that the “ticking time bomb” scenario just never frakking happens; putting all that aside, torture is simply and unequivocally illegal. (It should be noted that this interview was published way back in 2004.)
ABUSE AND TORTURE
The United Nations Convention Against Torture
Ray: There have been allegations from the very beginning that prisoners at Guantánamo were being tortured or abused, and a number of those who have been released described the treatment they received there as torture or abuse. What is happening there? Is torture allowed under international law? Is abusive conduct permitted?
Ratner: Torture has been prohibited for many, many years. The key document today that prohibits torture is the United Nations Convention Against Torture, an international treaty that almost every country in the world, including the United States, has ratified. The Convention Against Torture says that under no circumstances can torture be used: it is an international crime, and every country in the world must pass legislation to make it a crime. The United States has made it a crime even if it occurs abroad. Not only torture but other forms of abuse are prohibited by the Convention Against Torture: cruel, inhuman, and degrading treatment (conduct that is severe, but not so severe as to amount to torture) is also prohibited. A stress position, for example, such as forced standing for a number of hours, might not be torture but is still prohibited.
The Convention Against Torture also establishes what is called universal jurisdiction for cases of torture. This means that if a person is accused of torture and flees to or is present in another country, that country, if it signed the convention, has an absolute obligation to arrest that person, investigate, and either try him for torture or extradite him to the country from which he fled.
So, for example, if an American citizen engaged in torture anywhere in the world and was later found in France, let’s say, that person could be arrested in France and either tried for torture there or extradited to the place of the torture for trial. To the extent U.S. officials were or are involved in torture in Guantánamo or elsewhere, they should be careful about the countries in which they travel.
In fact, the prohibition against torture is the most fundamental international human rights prohibition, one that virtually all the nations of the world had agreed upon long before it was fully codified in the Convention.
Torture is also prohibited by customary international law—that is law that has arisen by the practices of nations. It is an absolute prohibition: under no circumstance can you torture anybody, ever. It has taken hundreds of years for this absolute prohibition to evolve into universally accepted law, but it is now an integral part of both treaty law and customary international law. The prohibition applies whether or not one is protected by the Geneva Conventions, which also prohibit torture and inhuman treatment of anyone, POW or not, who is in the custody of a government as a result of a war.
Ray: Is there any argument that can be made that torture and similar abuses are lawful if not used against prisoners of war but against unlawful combatants?
Ratner: Absolutely not. The Convention Against Torture applies to every human being. The Geneva Conventions apply to every type of combatant in a war. Even if one argues that al Qaeda suspects are not governed by the Geneva Conventions, the Convention Against Torture and other human rights treaties ratified by the United States prohibit torture as well as other cruel, inhuman, and degrading treatment.
Nor does the Convention Against Torture permit any excuses for torture. Article 2 says that “no exceptional circumstances whatsoever”—whether a state of war or a threat of war, political instability, or any other public emergency—may be evoked as a justification of torture. It goes on to say that an order from a superior officer or a public authority may not be invoked as a justification for torture. That is an illegal order, and you can be punished as a criminal for carrying it out.
The convention is crystal clear: under no circumstances can you torture people, whatever you call them, whether illegal combatants, enemy combatants, murderers, killers. You cannot torture anybody ever; it’s an absolute prohibition.
So classifying these people as threats to the United States has nothing to do with how you must treat them. They still have to be treated humanely, and humane treatment does not include torture.
In addition, torture committed by U.S. soldiers or private contractors acting under U.S. authority is a violation of federal law, punishable by the death penalty if the death of a prisoner results from the torture. Another federal statute criminalizes any grave breach of the Geneva Conventions—including torture, willful killing, inhuman treatment, and causing great suffering to those in custody—as a war crime. Furthermore, a special statute criminalizes such conduct if carried out by so-called private contractors working with the U.S. military.
Ray: How is torture defined?
Ratner: The Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” by a public or state official for any of a variety of reasons: punishment, getting information, and similar kinds of things. Also included in the definition of torture is the use of mind-altering drugs. The definition used in U.S. law is quite similar.
In other words, if a government official, whether a soldier, doctor, intelligence agent, military policeman, or contract interrogator, inflicts severe mental or physical pain on a detainee, that is considered torture. Something that is not considered sufficiently severe to be torture may fall into that lesser category called cruel, inhuman, and degrading treatment.
For example, during the 1970s the British prison authorities forced prisoners from the Irish Republican Army to stand hooded for long periods of time against a wall, six or eight hours at a stretch. While that was not considered torture, it was considered cruel, inhuman, and degrading treatment, and was considered illegal.
Ray: Since 9/11, there have been some arguments made that torture may be necessary to get information about the next terrorist attack. While you say that the Convention Against Torture allows no such exception, don’t these developments have some effect on the arguments that the prohibition on torture and similar conduct should be loosened?
Ratner: Initially, the most common hypothetical scenario was the capture of a person who knew the whereabouts of a nuclear bomb hidden in the middle of Manhattan, attached to a timer. The argument was that it was justified—more than that, it was just common sense—to torture that person until he revealed the location of the bomb, so it could be disarmed and the innocent residents of Manhattan saved. Most of the initial discussion actually centered on the conflict in Israel and the early cases of suicide bombers.
As revelations about the use of stress and duress and torture in U.S. detention camps have come out, a number of critics have been quick to excuse and to defend, to try to come up with a system that authorizes or justifies such tactics. One of the most ubiquitous is Alan Dershowitz, who says, look, if they are going to use torture anyway, why don’t we have a system, where you have to go to a court and get a warrant to be allowed to torture someone. Then, he says, we could control its use.
To me, this is an incredibly outrageous position, particularly for someone who considers himself a civil rights lawyer. It ignores the hundreds and hundreds of years during which civilizations have finally determined and agreed that torture is not civilized, in any circumstances. And it has many dangerous implications in situations less blatant than outright torture. Should we have the government go to a court to ask for permission to use stress and duress or sleep deprivation or dangerous drugs, or to keep a prisoner naked and with limited food? Is that the kind of society we want to live in?
Another critical aspect about torture is that, as many law enforcement officials acknowledge, you are not getting information that is accurate. You are potentially lining up and torturing a lot of innocent people who have nothing to do with anything and no information.
It is also counterproductive to treat people the way the United States does in Guantánamo or Bagram or Abu Ghraib if you want people to cooperate in the war on terrorism. Muslims and people of Arab ethnicity are angry and inflamed by what is being done to their people. They are not going to cooperate; worse, they are going to turn against you.
So even from a pragmatic point of view, there is a strong basis for opposing torture under any circumstance. Apart from its ineffectiveness and illegality, torture is one of the cruelest, and most dangerous things that the United States can be doing. The claim that torture should somehow be justified is really an attack on the very dignity of humanity. It sinks us all to an inhuman and uncivilized level. It debases the victim and the torturer. In the end, torture destroys everything we value as human beings.