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UN Human Rights Council to Investigate Iran: What it Means

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The U.N. Human Rights Council agreed on Thursday to a U.S.-backed proposal to establish a U.N. human rights investigator for Iran, the first in a decade.

The 47-member Geneva forum approved the resolution by 22 votes in favour, 7 against and 14 abstentions, its president, Thai Ambassador Sihasak Phuangketkeow, announced.

The resolution, the text of which is here, essentially will just allow a credible report on human rights abuses in Iran. It will not be enforced actively by the UN – effectively it is a ‘name and shame’ operation.

I. Internal Effects

In her recent book, Mobilizing for Human Rights, Beth Simmons framed the chances of political mobilization as a function of how much citizens value a right versus the chance they have of achieving their goal. In fact, for Simmons, human rights treaties are primarily about the relations between a state and its society, not between states (as in traditional reciprocal treaties – we won’t charge your companies tariffs if you won’t charge ours, etc. ).

Simmons argues that even if regimes choose not to enforce human rights treaties, the consequences of signing them locally can be profound as citizens are exposed to different concepts of rights; this is even more true in an even more connected world, given the omnipresence of social media. And while Simmons was referring to treaties, a special investigator (or Rapporteur) may have that same sort of effect – which is why the Iranian regime feared and fought this resolution.

What does this mean for Iran? Potentially a direct shot in the arm of the reform movement. But it’s worth noting these things only go so far as people take them. The United States tortured under George W. Bush and hasn’t prosecuted anyone for it because there’s no political will to do so. Sometimes exposure to rights treaties takes time to manifest (if it ever does at all). It’s entirely possible greater exposure of abuses in Iran won’t enlarge the size or resolve of the movement because the population of Iran already values these rights as much as they could possibly ever. But I doubt that – these rights are too basic and too many people are being repressed.

Indeed, (in an extraordinary statement) the Iranian delegation to the HRC itself did not all take itself seriously:

“The human rights team at the HRC session is an entirely political team and is not very familiar with human rights topics,” said a member of the Iranian delegation on condition of anonymity. “All efforts are focused on attacking the U.S. If they had asked the experts accompanying the delegation, they could have drafted better statements. But they don’t trust anyone other than themselves.”

We should be loathe of making grandiose predictions because of one lone Rapporteur, but today is certainly a better day than yesterday for the reform movement in Iran.

II. External Effects

There are uses for that though. One is that it cements Iran’s status as a semi-pariah state. (This is an ad-hoc category, so don’t look too much into that term. I would consider North Korea a full fledged pariah state in the analogy.) One such good sign is who voted for this resolution: Brazil did, after years of supporting extensively oppressive regimes, including being one of the first countries to recognize the fraudulent elections of Ahmadinejad. It’s unclear if this is in any way a result of Obama’s recent visit, but it is surely a welcome change in approach.

This also may be an instance where the Saudi-Iranian escalation in relations happened at an opportune moment – one group Iran looked to for support was the Organization of Islamic Countries, but with basically no allies left in the Islamic world (hard to see Arab countries, Turkey, or Indonesia riding to Iran’s defense right now) and countries being scared of seen supporting that repression, it’s not surprising the cavalry never came.

According to attending diplomats, the Iranian delegation’s lobby efforts have not been limited to Geneva. A diplomat who asked for anonymity said that Iranian authorities have dispatched several delegations to other countries prior to the session in order to ascertain their vote. One of the reasons Iran is seeing less cooperation this year despite its lobbying efforts is the Middle East developments from Libya to Bahrain. Some countries are afraid that as the human rights situation deteriorates and change appears inevitable in those countries, association with Iran may give any state siding with it a bad image.

As it turns out, Iran ignoring the supposedly toothless UN Human Rights High Commissioner may have antagonized countries.This underscores why the procedures can be helpful in the long run, even if incredibly frustrating on an ongoing basis:

Another point that has further caused Iran’s isolation is Iran’s lack of cooperation with UN human rights mechanisms. Out of more than 80 communications to Iran by the different UN special procedures, only 8 have been answered. The UN High Commissioner for Human Rights has also spoken up about Iran’s lack of attention to the different requests raised by different human rights resolutions. Since 2005, Iran has prevented the presence of UN special rapporteurs in Iran and the 14 March report of the UN Secretary General indicates that dozens of people have been executed secretly by the Iranian government. According to a diplomat from an African nation, the Iranian government has portrayed such an image of itself that supporting Iran appears as a liability for other countries.

Lastly, it’s yet to be seen what this will do, but this is an example of what happens when you have an administration that takes international diplomacy seriously instead of just whining that the council isn’t doing this on its own. Diplomacy takes work.

“The new human rights body started on a very weak footing without the U.S. leadership,” Dokhi Fassihian, the Director of Washington-based Democracy Coalition Project that oversees the implementation of multilateral human rights strategies through the United Nations, told IPS. But Obama administration’s initiative against Iran indicated that things would change, he added.


Written by John Whitehouse

March 24, 2011 at 11:06 am

New DOJ Regulations Pretend Torture Never Happened

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If a detainee falls in the woods, and you as his military appointed lawyer are not allowed to ask him the circumstances around him falling, could it ever be torture?

Defense lawyers were given until Monday to sign the new rules, prompting a protest by the Chief Defense Counsel Marine Col. Jeffrey Colwell, who said Friday afternoon the Pentagon was delaying implementation. Broadly, Colwell wrote, the document “unreasonably and unlawfully interferes with the attorney-client relationship” between the captives in the Guantanamo camps and American defense lawyers in uniform of their enemy.

Specifically, in one instance, he noted the “absurd” requirement that lawyers tell the military beforehand what language they will speak with the captive.

It suggests “the government is monitoring our communications,” the Marine colonel wrote, “which paragraph 87e says you are not.”

. . .

Now paragraph 29, for example, says a lawyer needs the CIA’s blessing simply to ask a captive about a confession the CIA claims he made at a secret overseas interrogation site, before the prisoner ever saw the Red Cross delegate or a lawyer. “Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.”

. . .

Military lawyers not assigned to the Nashiri case said the rules mean his defense attorneys can ask him broad questions — for example, Tell me about your time in U.S. custody before Guantánamo? — but not specifically about any classified documents created while he was at a CIA black site.

Paragraph 31 forbids the defense lawyers from saying, “That’s classified,” as an explanation for why they can’t answer a question.

The Pentagon’s top lawyer, Jeh Johnson, told Congress members Thursday that the order was meant to align the oversight of military lawyers with the “protocol” already imposed on civilian lawyers who travel to Guantánamo to meet captives suing in federal court for unlawful detention.

“As you can imagine, the defense counsels are not to happy about it,” Johnson said, adding that they were given an advanced copy to give them a chance to complain. Colwell said the military criminal defense lawyers were “extremely troubled” by the new oversight regime.

It does not let an attorney use discretion on what constitutes legal reading material. A Pentagon lawyer gave Guantánamo’s youngest captive, Omar Khadr, a copy of Lord of the Rings some years ago — until guards confiscated it.

So basically the administration line is that it brings protocol into line, but doesn’t feel the need to even defend that protocol in public. What’s worse, is that this is widely accepted.

And yes, apparently it’s in the vital national interest of the United States to prevent a teenager who got caught up in a war zone largely because of the deplorable acts of his father from reading about the friendships the develop between elves, dwarves, and little people. Peter Jackson is clearly a member of a sleeper cell, after all.

The bottom line:

“It’s going to slow everything down, tie our hands,” said Colwell. “Getting information to our clients is now going to take weeks instead of days.”

Written by John Whitehouse

March 19, 2011 at 1:23 pm

South Africa Values Independent Investigations

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Can anyone imagine this sort of political courage in the United States?

South Africa’s highest court has struck down the 2008 law that disbanded the independent crime investigating group known as the Scorpions.

The legislation to disband the Scorpions followed an investigation into now-president Jacob Zuma’s alleged involvement in a major arms deal. The Scorpions were replaced by a police-run unit known as the Hawks.

The Constitutional Court ruled on an amendment to the policing act that brought about the demise of the Scorpions, the Directorate of Special Operations, and the birth of the Hawks, the Directorate for Priority Crime Investigation.  It says the amendment is unconstitutional because it does not ensure the independence of the Hawks.

The Scorpions undertook many investigations of alleged government corruption and other alleged crimes by senior government officials. The unit’s conviction rate was well over 90 percent.

One of its most prominent cases was its investigation of Mr. Zuma on corruption and other charges.  But those charges were dropped shortly before he was elected president.  There were accusations by both sides that the actions were politically motivated.

Being part of the police department, the Hawks do not have the same independence as their predecessors.  The Constitutional Court has given the government 18 months to ensure that they are independent of undue government influence or control.

The majority opinion read in part that the Hawks are “insufficiently insulated from political influence in its structure and functioning…because…activities must be coordinated by the Cabinet.

It sounds like this Scorpions unit is essentially what would happen if ProPublica was a unit of the DOJ.

We live in an era where political parties cannot investigate each other (unless someone got some in the Oval Office) for fear of ‘looking backwards.’ Meanwhile, South Africa courts go against the legislature to uphold an independent group that investigated the President? Wow.

I quoted this at some length because I am just amazed that a Supreme Court can stand up to a President on rule of law issues when it’s that personal. (Granted, the DOJ is already insulated from a lot of political pressure) The closest analogue in the United States lately might be the line of cases striking down certain detention practices of the Bush Administration. But that was not as personal or as thorough as the ruling here (as evidenced by Guantanamo still being open).

Not to mention that South Africans have great taste in naming their law enforcement operations. Suck on that, American Joint Task Forces.

Written by John Whitehouse

March 17, 2011 at 11:55 am

Who Is Enforcing the Convention Against Torture?

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Civil liberties advocates are upset that the Obama administration, contra campaign promises, is not prosecuting cases under the Convention Against Torture. Daphne Eviatar writes:

Marcy Wheeler made a great point on Friday that’s worth following up on. President Obama’s declaration to commemorate the 25th anniversary of the United Nations Convention Against Torture tosses the responsibility for developing “effective policies and programs for stopping torture” to the State Department, asking it to “solicit information from all of our diplomatic missions around the world …”

But the President’s speech seemed primarily aimed at stopping torture abroad, which is presumably why he’s called on the State Department to get involved. But what about torture committed by our own government?

I know some are still debating which techniques constitute “torture” — such as in this scolding piece from The Washington Times — but because the Convention Against Torture, which the president was commemorating, prohibits torture AND cruel, inhuman and degrading treatment, as I’ve noted before, at this point we can put that debate aside. There’s little question that the sort of techniques engaged in by U.S. government officials — whether partial drowning, “walling,” weeks ofsleep and food deprivation or locking detainees inside a tiny box with what were believed to be deadly insects is, at the very least, cruel and degrading.

It’s odd, therefore, as Marcy points out, to see the president — who vowed on his third day in office to end torture — refusing to prosecute those who engaged in acts that clearly violate the anti-torture convention he commemorated on Friday.

The answer to the question strikes me as rather obvious: Obama is concerned not with proseecutions, but with prosecuting the war on terrorists (or whatever silly abbreviation is now en vogue) in a responsible way without using terrorists, and not prosecuting past offendors. This is obvious because that is what Obama has said.

The key excerpt from his address to the CIA:

What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and our ideals even when it’s hard, not just when it’s easy; even when we are afraid and under threat, not just when it’s expedient to do so. That’s what makes us different.

So, yes, you’ve got a harder job. And so do I. And that’s OK, because that’s why we can take such extraordinary pride in being Americans. And over the long term, that is why I believe we will defeat our enemies, because we’re on the better side of history.

So don’t be discouraged by what’s happened in the last few weeks. Don’t be discouraged that we have to acknowledge potentially we’ve made some mistakes. That’s how we learn. But the fact that we are willing to acknowledge them and then move forward, that is precisely why I am proud to be president of the United States, and that’s why you should be proud to be members of the CIA.

Essentially Obama is arguing that the benefits of prosecution are also gained by admitting mistakes, that essentially the torture was the fault of the state and not individuals. There’s no real legal basis for this, as far as I can tell, outside of normal prosecutorial discretion.

Moreover, it’s easy to sit on the sidelines and say that Obama should start prosecuting people that he’s counting on to protect the country. But its difficult for a President to pull that trigger – one terrorist attack and the rest of Obama’s agenda is down the tubes for a long time.

In related news, a left-leaning government in Spain is abandoning universal jurisdiction – in which their courts were able to investigate anything – and towards jurisdiction that appears to be based on the passive personality principle, in which a connection to the country in required:

In parliament, [the left-leaning Spanish government] is sponsoring a controversial change in the law, which would limit the future scope of universal jurisdiction to cases in which (i) the victims are Spanish, (ii) the alleged perpetrators are in Spain, or (iii) some other clear link to Spain can be demonstrated. On Thursday, the proposal was approved by lawmakers in the lower house by an overwhelming 341-2 vote, with three abstentions. Senate approval is seen as a formality.

“Without a connection to Spain, it presents problems of obtaining proof and co-operation from other states. And then the cases do not conclude.”
He has a point. All too often, inquiries by the Audiencia Nacional have produced complex legal arguments with the states concerned, filling pages of court documents but rarely the dock. Only Rodolfo Scilingo, an Argentine former naval officer, has been convicted in Spain under universal jurisdiction – although the court’s defenders point out that a second Argentine, Ricardo Cavallo, was extradited from Spain to face trial back home.

The government’s approach has appalled campaigners who argue that, with or without convictions, the Audiencia Nacional has commendably shed light on dark acts committed by closed regimes.

“Universal jurisdiction doesn’t necessarily work,” argues Angel Lossada, Secretary of State for Foreign Affairs, explaining the government’s policy.

This is relevant, since the argument by some here in the US favoring prosecutions is that under the Convention Against Torture, states are required to exercise universal jurisdiction.

Glenn Greenwald, just over a month ago:

The views that Ronald Reagan not only advocated, but signed a treaty compelling the U.S. to adhere to, are ones that are now — in the view of our dominant media narrative — the hallmarks of The Hard Left: torture is never justified; there are “no exceptional circumstances” justifying it; it must be declared to be a serious criminal offense ; and — most of all — the U.S., as Ronald Regan put it, “is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.” Reagan’s explicit view that the concept of “universal jurisdiction” permits signatory nations (such as Spain) to prosecute torturers from other countries (such as the U.S.) is now considered so fringe that it’s almost impossible to find someone in mainstream American debates willing to advocate it.

My emphasis.

Greenwald was arguing for universal jurisdiction, but now with Spain yet another advocate of that view is going out. It’s not just countries. International tribunals like the International Court of Justice have viewed exercise of that type of jurisdiction skeptically in recent decisions. The wikipedia listing of universal jurisdiction seems mostly accurate (though a bit unnecessary to have Henry Kissinger as the main opponent of it gives how it’s fallen into disrepute.

As it exists, the legal framework allows states like the US to flaunt the convention. As it is, a country is on an honor system to obey the convention, with the only check of international tribunals to enforce it – and those international tribunals are voluntary (and using a realist lens, they’re representative of a global coalition exerting pressure). Of course, the US is likely in an unseemly group in countries flaunting the convention as it is, and I’m no happier than that than you are (really, I’m anti-torture … I also have a realist/pessimist streak depending on your point of view). But there’s essentially a giant gap in the legal framework that exists, and Obama is steering the country through that gapto save the rest of his agenda.

I want to spend more on this topic in future posts as well, to hopefully refine my position a bit more and make it more clear. For the moment, I’d just appreciate if no one called me a pro-torture sympathizer. I just don’t see any realistic option for prosecutions being in Obama’s interest. And if you can’t make a legal system that makes prosecuting in your best interest, you failed at building a system for the times.

The legal framework for the new wwar – whatever you want to call it – is still being figured out. That’s the most important thing happening right now, and whether person X is prosecuted or not for torture is a small part of that.

Written by John Whitehouse

June 29, 2009 at 1:41 pm

Posted in Foreign Policy, Law

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