Posts Tagged ‘Folter’

The Nuremberg Principles and Syria—Obama’s Debacle in Syria — Update #5

Tuesday, March 6th, 2012


U.N. Security Council

For earlier articles on Syria by The Trenchant Observer, see the Articles on Syria page.

If Russia and China want to continue to embolden al-Assad in the commission of such crimes by vetoing a Security Council resolution conferring jusrisdiction on the ICC at this time, let them do so, in a public session.

Let them reveal to the world, on the record, for all history, that they do not endorse the Nuremberg Principles, and necessary actions by the Security Council to bring them to bear in the Syrian case. Let the world know fully, unequivocally, that China and Russia have been and are supporting al-Assad’s commission of war crimes and crimes against humanity.

If China and Russia do not understand how they have burned their bridges with the peoples and governments of the Middle East, and the new generations represented by the Arab Spring which aspire to achieve democracy and the rule of law, at least let us in the rest of the world, and in the domestic populations of China and Russia, look that reality in the face.

At the same time, the United States, France, the United Kingdom, Turkey and all other states which are in a position to bring military force to bear should proceed to develop military options which can be executed on short notice, if the Butcher of Homs does not stop the killing in Syria.

The Principles of Nuremberg captured the lessons learned in World War II following the massive commission of crimes against humanity and war crimes by Adolph Hitler under the Third Reich.

In reflecting on the situation in Syria, and the passivity of the international community in the face of the continuing commission of crimes against humanity, war crimes, and other widespread grave commissions of fundamental human rights, it is well worth reading those principles again today–and tomorrow, and the day after tomorrow.

The Nuremberg Principles established the following:

Principles of the Nuremberg Tribunal, 1950

Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. Adopted by the International Law Commission of the United Nations, 1950.

Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle Vl
The crimes hereinafter set out are punishable as crimes under; international law:

a.  Crimes against peace:
i. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
ii. Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

b.   War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

c.   Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.

–Principles of the Nuremberg Tribunal, 1950
No. 82
Introductory note: Under General Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.” In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text below was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the Intemational Law Commission, 1950, Vol. II, pp. 374-378).
Authentic text: English Text published in Report of the International Law Commission Covering its Second Session, 5 June-29 Duly 1950, Document A/1316, pp. 11-14.

——————————————————————————–
Index
WWW URL: http://deoxy.org/wc-nurem.htm
The Commission of Inquiry for the International War Crimes Tribunal

***

The questions for the international community are:

1. Are you going to apply the Nuremberg principles in the case of Syria?
2. Are you going to stop the ongoing commission of crimes against humanity and war crimes in Syria?
3. When are you going to stop the commission of crimes against humanity and war crimes in Syria?
4. What are you going to do to punish those responsible for the commission of crimes against humanity and war crimes in Syria?
5. Are you going to refer the investigation and punishment of crimes against humanity and war crimes to the International Criminal Court (ICC), through the adoption by the U.N. Security Council of a resolution under Chapter VII of the United Nations Charter?
6. When are you going to refer the investigation and punishment of the crimes against humanity and war crimes which have been and are being committed by the Bashar al-Assad regime in Syria to the International Criminal Court?

***

Referral to the ICC is the least the U.N. Security Council might do, now, today. Such a resolution, which has been called for by many including the United Nations High Commissioner for Human Rights, Navi Palli, should be brought to discussion in a public session of the Security Council and put to a vote, now. Today.


If Russia and China want to continue to embolden al-Assad in the commission of such crimes by vetoing a Security Council resolution conferring jusrisdiction on the ICC at this time, let them do so, in a public session.

Let them reveal to the world, on the record, for all history, that they do not endorse the Nuremberg Principles, and the taking of necessary actions by the Security Council to bring them to bear in the Syrian case. Let the world know fully, unequivocally, that China and Russia have been and are supporting al-Assad’s commission of war crimes and crimes against humanity.

If China and Russia do not understand how they have burned their bridges with the peoples and governments of the Middle East, and the new generations represented by the Arab Spring which aspire to achieve democracy and the rule of law, at least let us in the rest of the world, and in the domestic populations of China and Russia, look that harsh reality in the face.

At the same time, the United States, France, the United Kingdom, Turkey, and all other states which are in a position to bring military force to bear should proceed to develop military options which can be executed on short notice, if the Butcher of Homs does not stop the killing in Syria.

The Trenchant Observer

observer@trenchantobserver.com
twitter.com/trenchantobserv


Saturn Devouring His Son


Goya, The Third of May

Passivity in the Face of Terror in Syria, Threats of War in Iran — Obama’s Debacle in Syria—Update #2 (March 3, 2012)

Saturday, March 3rd, 2012

For earlier articles on Syria by The Trenchant Observer, see the Articles on Syria page.

A Hard Truth:  Obama is a Weak Leader on Foreign Policy

The truth is hard to accept:  President Obama is a very weak leader on foreign policy issues.

This is a painful admission, because like many others the Trenchant Observer had high hopes and expectations for Obama when he assumed office in January, 2009.  He is still far and away superior to any of the candidates in the Republican primaries who could potentially challenge him for the presidency in 2012.

But he stumbled badly in Libya, and was saved only by the intitiative of France and England which led to him getting involved, “leading from the rear.”  America’s “leading from the rear” resulted in great delay before military action was taken, and consequently the loss of many civilian lives in Libya.

Now, he is stumbling badly again–in Syria.  Nicholas Sarkozy is consumed by the first-round presidential elections soon to be held in France, and has declared that France will only act militarily pursuant to Security Council authorization. David Cameron is unable to assume the mantle of leadership on his own. 

So, in effect, following the Russian and Chinese vetoes of a mild U.N. Security Council resolution on February 4–which explicitly ruled out the use of force–and a General Assembly resolution on February 16 which harshly condemned the widespread commission of grave human rights abuses by the Syrian government.

China and Russia have burned their bridges in the Middle East, probably for a generation. Both have shamelessly vetoed the Security Council resolution on February 4 endorsing in part the Arab League’s peace plan–which ruled out the use of force. Both voted against a General Assembly Resolution on Frebruary 16 condemning al-Assad’s continuing butchery in Syria, and calling for its immediate halt. Amazingly, both China and Russia also voted against a Human Rights Council resolution on March 1 which concdemned the killing and called for access for humanitarian relief.

Now, on March 4, China proposes something very similar to what the February 4 Security Council provided for. Unfortunately, thousands have died since then, the butchery continues, and measures short of the authorization of military force or its use are unlikely to stop Bashar al-Assad’s raging commission of crimes against humanity and war crimes.

In a word, no forceful action has been taken to stop the killing in Syria, and none is yet in sight. Obama’s actions have been marked by their passivity, and by his absolute failure to deal in a serious way with the ongoing carnage on the ground in Syria. As in Libya, he has been a commander in chief notable primarily for his absence from the center of decision-making during a crisis of great importance to the United States and the world. He has not assumed the mantle of leadership, and even reportedly vetoed this last week proposals from within hhis administration for the use of force.

The World–Leaderless and Helpless Before the Ongoing Terror in Syria

The world stands leaderless and helpess before the ongoing terror and commission of crimes against humanity and war crimes by Bashar al-Assad and his government in Syria.

This week the U.N. official in charge of humanitarian assistance was refused entry to Syria.  Al-Assad refuses to allow the International Committee of the Red Cross and the Red Crescent to enter Homs with humanitarian assistance and to remove the wounded.  Having been promised access, they now begin their third day of waiting.  Bombardments of Homs and other cities and towns continue.

U.N. Secretary General Ban Ki-Moon has been reduced to an almost tragic figure, pleading publicly with Al-Assad to allow humanitarian aid in and to stop the killing. It is almost as if he expects that the Syrian Dictator might be swayed by appeals to reason and to humanitarian considerations–at this point in time, after all such previous appeals have failed spectacularly.

Leaders from civilized nations and their populations have trouble believing that true evil exists.  They need to grasp that it does exist, now, in Syria.  Hitler existed.  Stalin existed.  They were real.  So is Al-Assad.

Ban Ki-Moon recently made a horrendous mistake when he appointed Kofi Annan to mediate the dispute in Syria, in effect to “mediate” the commission of war crimes and crimes against humanity.  How you can even negotiate with such a murderer without bringing to bear credible threats of the use of force is beyond the Observer’s understanding.  The idea of mediating the commission of such crimes is a fundamentally flawed concept, and how it ever got out of the Secretary General’s office defies comprehension. It was an act born of desperation, a desperate ploy, it would seem.

In the event, as was to be expected, Kofi Annan has not even been able to get into to Syria to meet with al-Assad, who continues his commission of crimes against humanity and war crimes in Homs and elsewhere in the country.

It is a sad spectacle, when the world community faces the commission of such horrendous crimes without a leader, helpless.

Obama’s Dangerous Drift and Lack of Leadership on Syria and also on Israel and Iran

Obama should be that leader, but he seems driven only by factors that might affect his re-election in October.  Instead of leading efforts to mobilize effective action against al-Assad, including military action if required, he is on the stump giving political speeches, even if they aren’t called that, fighting to win the daily news cycle as if he were in the last two weeks of the presidential campaign in October.

The world is leaderless, and Obama is stumbling on Syria, and also on Israel and Iran.

His talk of “all options are on the table” with respect to Iran has now become an oft-repeated mantra, whose force has become so weakened that the president himself feels constrained to assure the world that he is “not bluffing”.  Once you have to tell people you are not bluffing, your credibility is already on very weak ground indeed.

His foreign policy attention is riveted on Netanyahu’s visit to the Washington next week, where the Israeli Prime Minister will meet with Obama and also with the leading Israeli lobby in the country. Netanyahu and Israel do have an impact on the elction, through their impact on American supporters and political contributors. That’s one reason why Obama is paying such close attention.

Yet the one nagging problem, far from the lights and noise of the political arena, remains. That problem is that Syria, and Israel and Iran are part of the real world, outside of U.S. electoral politics and the 24-hour news cycle in the U.S. Obama’s decisions will have far-reaching impacts on what happens on the ground in each of these countries, wholly aside from whatever impact they might have on the American presidential elections.

Obama’s Blind Spot: International Law

Obama seems to have it exactly backwards in terms of principle, talking of the option of Israel–with U.S. acquiescence or assistance–attacking Iran to put their nuclear weapons program out of business, at least for a while.

Under international law, there is no basis whatsoever for a military attack on Iran in the absence of Security Council authorization. To argue that Israel is acting in self-defense would stretch that concept (contained in Article 2(4) and Article 51 of the U.N. Charter) far past the breaking point.

Moreover, U.S. military assistance to Israel generally contains the condition that the weapons may only be used for self-defense. No argument that an attack on Iran was justified by self-defense could be made with a straight face, without completely eliminating the meaning of that term in domestic legislation (which applies to military assistance to many countries), not to speak of its lack of foundation under international law and the U.N. Charter.

At the same time, Obama should be aware that the Non-Proliferation Treaty to which Iran is a party contains a withdrawal clause that Iran might well invoke in order to withdraw from the NPT after an armed attack by Israel (with or without the acquiescence or support of the United States).

Article X(1) of the NPT provides:

Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.

–For a short but insightful discussion of the withdrawal clause and its history, see Jenny Nielsen and John Simpson, “The NPT Withdrawal Clause and its Negotiating History,” in Mountbatten Centre for International Studies, MCICS NPT Review Issue (2004).

In sharp contrast, military action to relieve civilian populations from attacks by tanks, anti-aircraft guns and artillery in Syria, and the blocking of humanitarian relief, could probably be justified under international law, even without the authorization of the Security Council. This  in effect was the position taken by the United States with the support of NATO and other countries when it bombed Serbia in 1999, to bring to a halt the crimes against humanity being committed in Kosovo.

In short, international law would arguably permit military action in Syria under the present extraordinary conditions that exist there, whereas an Israeli armed attack on Iran to halt its nuclear program would be a flagrant violation of the U.N. Charter, international law, and U.S. domestic legal restrictions on the use by Israel of weapons purchased from the U.S. or with U.S. funds.  Moreover, an attack on Iran might well lead to Iranian withdrawal from the NPT, making resolution over the longer term of the Iranian nuclear question even more problematic. 

The Consequences of Drift and Inaction in Syria, Israel, and Iran

Obama’s drift and lack of leadership are, in view of the foregoing, extremely consequential.  By not leading the international community in efforts to halt al-Assad, by force if necessary, in accordance with international law, and by verbally allowing the possibility of an Israeli attack on Iran, in a manner which could actually lead the Israelis to think they might have a green light, he is in a position to cause an extraordinary reversal of fortunes for the United States, and a much broader war in the Middle East.  Obama’s lack of strategic sense also makes it hard for him to see how opposing al-Assad could have the additional benefit of weakening Iran’s reach into Syria, Gaza (with Hamas) and Lebanon (with Hezbollah). 

Al-Assad’s butchery could continue, while Israel attacks Iran, igniting a regional conflict. At that point it would not only be China and Russia excercising their vetoes in the Security Council to protect al-Assad and gain time for him to finish wiping out his opponents, but also the United States invoking its veto to avoid condemnation and action against Israel and the U.S. under Chapter VII of the Charter, for violation of the prohibition against the threat or use of force contained in Article 2 (4) of the U.N. Charter–the most important norm in the Charter.  Come to think of it, President Obama might usefully reread that language, particularly the part about the “threat..of the use of force”.

Obama has paid little attention to international law.  This is evident, to cite but a few examples, from his failure to apply the provisions of the Convention Against Torture to prosecute those responsible for crafting and implementing the Bush torture policy, in his support of targeted killings and failure to prosecute those responsible for extraordinary renderings, and finally through his adoption of an expansive military doctrine and practice of using drones to execute individuals put on a targets list.  The latter has even included U.S. citizens, and the targeting of unknown individuals who meet certain “parameters” that indicate they belong to the Taliban, Al Queda or other terrorist groups.

He did not use the words “international law” in his Nobel Prize acceptance speech in Oslo, on December 10, 2009.  We can now see, much better than we could at the time, how extremely significant that omission was.

Obama and administration officials speak of ”red lines” when they are telling other governments what actions might provoke a military response.  Foreign officials have even begun to use the term of ”red lines”.  This is the way states communicated with each other in the 19th century.  Obama doesn’t use the language, grammar and vocabulary of international law, which has evolved  into a highly developed form of precise communication built on the legitimacy and acceptance of the principles involved.  He should. 

As the Butchery Continues in Syria and Israel Threatens to Attack Iran, What is to be Done?

What is to be done?P

Leadership of the world must come from somewhere, if chaos is to be avoided. Preferably that leadership should come from the President of the United States of America, Barack Obama.

But if it doesn’t, if Obama falters, other states or groups of states must come forward, not only to lead military action in Syria if required to halt the killing, but also to prevent an Israeli attack–with or without U.S. backing–on Iran.

International peace and security hang in the balance.

The Trenchant Observer

observer@trenchantobswerver.com
twitter.com/trenchantobserv

–For earlier articles by The Trenchant Observer, see the Articles on Syria page.
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U.N. Commission Report on Crimes Against Humanity in Syria; Military Action; Unilateral Humanitarian Intervention in Syria and International Law

Friday, February 24th, 2012

Terror That Cannot Be Stopped By Logic or Reason

Bashar al-Assad’s assault on civilians with tanks, snipers, and all the instruments of terror of a modern state is not likely to be stopped by logic or reason, just as Hitler’s terror could not have been stopped by logic or reason.

The leaders of Western countries, like their populations, are extraordinarily slow to recognize evil, perhaps because in the 21st century they don’t want to believe that true evil exists. But it does. Now. In Syria.

For a glimpse into the civil war underway and the hell Syria has become and is, today, read the report of a special United Nations Commission that has been investigating the crimes of the Syrian regime, made public today.

–See Alan Cowell and Steven Lee Myers, “U.N. Panel Accuses Syrian Government of Crimes Against Humanity,” New York Times, February 23, 2012.

–For the full text of the 72-page report, see “Report of the independent international commission of inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/19/69 (22 February 2012).

While the “Friends of Syria” are meeting in Tunis on February 24, and may reach decisions that are important mileposts toward building an international coalition to eventually support effective action in Syria, none of their decisions will stop al-Assad’s terror against the civilian population of his country. None of their decisions will stop the tanks and artillery from firing on apartment blocks and homes in Homs. None of their decisions will stop Syria’s Hitler from deliberately assassinating foreign journalists.

While these deliberations in Tunisia are important, there is also an urgent need for a second decision-making track on Syria. On this second track, key military and other decision-makers from a small number of countries should be meeting to reach decisions regarding the immediate deployment of military assets to the region, to provide real military options that can be quickly exercised if all else fails–as will likely be the case.

Perhaps these groups are already meeting. The United States and others should be moving their military assets to the Eastern Mediterranean and the area surrounding Syria as quickly and urgently as they can.

If al-Assad’s terror and commission of crimes against humanity and war crimes is to be stopped soon, the lessons of the Libyan experience must be applied. Military planning needs to be directed by a small number of states, and not left hostage to consensus decision-making among a large coalition. The latter can make key decisions to authorize, where possible, and in any event to endorse and support military and other action. But the execution of military actions should be left to a very small group, and not subject to consensus decision-making procedures such as those in NATO.

Unilateral Humanitarian Intervention Under International Law

Much of the discussion of options on Syria has assumed that there is no way for military action to be justified under international law without Security Council authorization. This assumption should now be subject to very close re-examination, as international lawyers in key countries explore legal justifications that would permit immediate military action to stop al-Assad’s centrally-directed commission of crimes against humanity, war crimes, and other grave violations of fundamental human rights. These include the deliberate targeting and execution of journalists and the targeting of and attacks on medical personnel and facilities. The precedent that would be established could be a very narrow one, given the extraordinary circumstances of the Syrian case.

For an excellent discussion of the international law issues related to unilateral humanitarian intervention applicable to the case of Syria, see Nikolai Krylov, Humanitarian Intervention: Pros and Cons, 17 Loy. L.A. Int’l & Comp. L. Rev. 365 (1995). Available at:
http://digitalcommons.lmu.edu/ilr/vol17/iss2/3.

Among more recent, shorter essays, see: Amos Guiora, “Humanitarian Intervention in Syria and the Role of the US,” JURIST – Forum, February 23, 2012. The author is professor of law at the University of Utah.

The Responsibiity to Protect

The preceding article by Nikolai Krylov was published in 1995. There have been significant developments since then, including the adoption by the United Nations Security Council of Resolution 1674 in 2006 on the protection of civilians in armed conflict. That resolution explicitly accepted and reaffirmed the “responsibility to protect” civilian populations as stated in the 2005 World Summit’s conclusions. Those provisions stated the following:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

The crux of the issue, as it was in Kosovo and Serbia, is what military action can be taken without Security Council authorization. Syria represents an extraordinary case, where a regime actively committing crimes against humanity and war crimes on a massive scale has been condemned by the General Assembly and by 13 members of the U.N. Security Council, which would have acted but for the vetoes of China and Russia. In these circumstances, there might be a strong legal case to be made supporting the limited use of military force to relieve civilian populations under bombardment and sniper fire, and to establish and maintain humanitarian corridors and safety zones. The international lawyers in the leading governments should be working night and day on this issue. Perhaps they already are.

The world stood by as Sarajevo was shelled during 1992-1995, leading to hundreds of thousands of deaths in the Balkans and to Srebrenice in 1995. Today, the world watches in real time as the same crimes against humanity are being committed in Homs and other cities and towns throughout Syria.

It is time to stop al-Assad.

Above all, delay is to be avoided, as thousands of lives hang in the balance.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

REPRISE: Consorting with the Devil? The Debate over the Efficacy of Torture

Sunday, May 15th, 2011

Given the renewed debate in the U.S over the efficacy of torture in the wake of Bin Laden’s death, the article republished below, written on April 24, 2009 and first published here on October 1, 2009, puts current arguments in perspective.

*****************************************************

CONSORTING WITH THE DEVIL? THE DEBATE OVER THE EFFICACY OF TORTURE

April 24, 2009–The current debate over whether the use of torture by the Bush administration produced valuable information throws into sharp relief the moral depths to which the United States has sunk–from leading politicians and policymakers to large portions of the press and millions of average citizens. One cannot but wonder whether the rampant corruption in the mortgage market, in stock analysts’ recommendations, and in financial behavior which has brought this country to a new nadir, might not be related to a general lack of ethical and spiritual moorings in broad swathes of the population.

Painfully few religious, business or other leaders have taken continued, strong public stands against our use of torture. With notable exceptions, journalists even today shrink from describing so-called “harsh interrogation techniques” including water boarding as “torture”. Fear of litigation should not completely muzzle the press. The lack of awareness of history reflected in news reports and analyses and debates among officials is astounding, and suggests that the education of even many of our most educated public servants and journalists has a glaring gap at its moral core. That is, even with the best educations at the best universities, this ethical gap and lack of a moral core has not been remedied.

The principle of due obedience, rejected at Nuremberg and accepted but only for a while in Argentina, is quietly accepted without reference to either of those precedents. Or to the facts and considerations that led to the adoption and ratification of the torture convention.

To a nation which cheered episodes of “24” depicting torture by U.S. agents, the correct principle seems to be: “If torture works, we should use it to protect ourselves.”

It is a matter of immense sorrow to note that our leading pundits make scant reference to the fact that the sons and daughters of the Enlightenment, including the drafters of our own Constitution, rejected torture on moral, not utilitarian, grounds.

Let us then, for the sake of argument, postulate that torture in some cases produces useful information. Assuming, arguendo, that this is the case, the question for debate is simply this: “Is the use of torture, if effective, state behavior that is morally justified?

In other words, let’s skip the efficacy debate, which debases all who defend torture on utilitarian grounds. Let us debate the central moral issue: “Is torture, even if effective, morally acceptable, and why or why not?”

In this debate, it is worth bearing in mind that the entire edifice of international human rights rests on the inviolability of the physical integrity of the human person. This core principle is deeply rooted in the religious belief that in each human being there resides a part of the divine. It is a stunning testimony to the depths to which our nation has sunk to listen to the debate over the efficacy of torture as if effectiveness were the essential question. Instead of spymasters and doctors and psychologists who have consorted with the devil, it is time for us to listen to others, to our religious and moral leaders, and to politicians and other leading figures who believe there is a moral framework within which our actions—both as individuals and as a nation–are to be judged. It is time for these leaders to stand up and to speak out loudly and clearly on the morality of torture. It is time for them to take an unequivocal position on the torture our government has adopted as a policy and executed in the bowels of hell. It is time for them to demand the full truth and details of what our government has done, acting in our name.

There is no more fundamental human right than the right to the physical integrity of the human person. This right was recognized at Nuremberg, and enshrined in the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man, in 1948. It was specifically protected in the Geneva conventions on the law of war (humanitarian law), in 1949. The right is the cornerstone of numerous human rights treaties to which the U.S. is a party including the U.N. Convention on Civil and Political Rights, and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The right is also fully protected in the European Convention on Human Rights, which establishes the constitutional norms and fundamental law on the subject in the nations of Europe.

So let’s hear the debate on whether the underpinnings of these human rights conventions are to be ripped out by allowing torture, and on the ultimate issue of the morality of the use of torture by the state against the individual. In engaging in this discussion, let us also avoid any semblance of the sophomoric debates that took place in our government, in which the question of torture was addressed as if it were a tabula rasa, in blithe ignorance of the history, religious positions, and legal developments that had taken place in the past.

The Trenchant Observer

www.twitter.com/trenchantobserv
observer@trenchantobserver.com

See also

The Trenchant Observer, “Bin Laden and the Debate Over Torture–Revived, May 7, 2011 ;

Mark Benjamin, “The torture debate is back, but what about the criminal probe?” TIME, May 4, 2011;

The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010; and

The Trenchant Observer, “Craig’s Departure, the Ban on Publication of Any Torture Photograph, and Reaffirmation of the Prohibition Against Torture,” November 25, 2009

Bin Laden and the Debate Over Torture–Revived

Saturday, May 7th, 2011

Some former U.S. officials responsible for torture under the Bush administration have claimed that the trail to Bin Laden was uncovered by the use of torture. The Telegraph (London) reports:

Jose Rodriguez, the agency’s former head of counterterrorism, said vital information had come from bin Laden deputies Khalid Sheikh Mohammed and Aby Faraj al Libbi, who were subjected to “enhanced interrogation techniques”.

–Gordon Rayner, “Osama bin Laden dead: torture unlocked bin Laden hideout ex-CIA man says — Key intelligence that led the US to Osama bin Laden’s hideout was obtained under torture in secret “black site” prisons, a former CIA officer has claimed, The Telegraph, May 5, 2011.

John Yoo, the author the legal memoranda authorizing torture under the Bush administration, writes is on Op-Ed piece in the Wall Street Journal:


Sunday’s success also vindicates the Bush administration, whose intelligence architecture marked the path to bin Laden’s door. According to current and former administration officials, CIA interrogators gathered the initial information that ultimately led to bin Laden’s death. The United States located al Qaeda’s leader by learning the identity of a trusted courier from the tough interrogations of Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi.

Armed with the courier’s nom de guerre, American intelligence agencies later found him thanks to his phone call to a contact already under electronic surveillance. Last August, the courier traveled to bin Laden’s compound, but it took another eight months before the CIA became certain that the al Qaeda leader was hiding inside.
Armed with the courier’s nom de guerre, American intelligence agencies later found him thanks to his phone call to a contact already under electronic surveillance. Last August, the courier traveled to bin Laden’s compound, but it took another eight months before the CIA became certain that the al Qaeda leader was hiding inside.

–John Yoo (Op-ed), “From Guantanamo to Abbottabad,” Wall Street Journal, May 4, 2011.

The apologists for the torture policy of the Bush administration raise a hard question for President Obama, but not the one they think:

Why have John Yoo and other architects of the Bush administration’s policy of torure not been prosecuted, in accordance with U.S. law and the international legal obligations of the United States under the Convention Against Torture?

See Mark Benjamin, “The torture debate is back, but what about the criminal probe?” TIME, May 4, 2011.

The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010.

The Trenchant Observer, “Craig’s Departure, the Ban on Publication of Any Torture Photograph, and Reaffirmation of the Prohibition Against Torture,” November 25, 2009

The claims of the torture apologists have been rebutted by a number of current and past U.S. officials, though that is really beside the point here.

On the fundamental moral issues involved in the debate over the efficacy of torture, see The Trenchant Observer, “Consorting with the Devil? The Debate over the Efficacy of Torture,” October 1, 2009 (written April 24, 2009).

Meanwhile, there appear to be few moral doubts about the efficacy of torture among the leaders of Libya, Syria, and many other countries.

Are we OK with their use of torture? If not, what can we say to them to urge them to stop?

The Trenchant Observer

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