Posts Tagged ‘Jr.’

Nibia Zabalzagaray and the long arc of justice

Thursday, May 9th, 2013

“(T)he arc of the moral universe is long, but it bends toward justice.”

“Before the crown we wear, there is the cross that we must bear. Let us bear it–bear it for truth, bear it for justice, and bear it for peace. Let us go out this morning with that determination. And I have not lost faith. I’m not in despair, because I know that there is a moral order. I haven’t lost faith, because the arc of the moral universe is long, but it bends toward justice.”

–Dr. Martin Luther King, Jr., “Why I am opposed to the war in Vietnam,” Sermon at Ebenezer Baptist Church on April 30, 1967.

The Case of Nibia Zabalsagaray (Sabalsagaray)

Uruguayan General Miguel Dalmao has been found guilty of the murder of Nibia Sabalsagaray in 1974.

See Associated Press (Buenos Aires, “Uruguayan general found guilty of junta’s 1974 murder of communist; General Miguel Dalmao convicted of murder of professor and activist Nibia Sabalsagaray during Uruguay’s military dictatorship,” The Guardian, May 9, 2013. (16.36 EDT)

See also:

“Uruguay Supreme Court annuls amnesty law, as accountability continues in Latin America, intlawgrrls.com-voices on international law, policy, practice, November 3, 2010 (with picture of Nibia Sabalsagaray).

I remember Nibia Sabalsagaray, or rather her case at the Inter-American Commission on Human Rights (IACHR)–or the Comision Interamericana de Derechos Humanos (CIDH), as it is known in Spanish. The IACHR is the human rights organ of the Organization of American States, established pursuant to both the OAS Charter and the American Convention on Human Rights (in force since 1978).

Although much litigation has ensued, including decisions by the Inter-American Court of Human Rights and several decisions by the Uruguayan Supreme Court on what amounted to an amnesty law, the original decision of the IACHR, issued four years after the facts, is worth recalling in detail.

The 1978 Decision on Case 1870 by the Inter-American Commission on Human Rights

The Text of the Commission’s decision in Case No. 1870 (Nibia Zabalsagaray) follows:

Case 1870

Uruguay

WHEREAS:

In a communication dated August 22, 1974, the following was denounced:

A young woman, a 20-year-old student and professor, NIBIA ZABALZAGARAY, (was) killed as a result of tortures inflicted at the Police Station at Señaleros, located in the El Peñarol neighborhood of Montevideo.

The Inter-American Commission on Human Rights, in a note dated October 8, 1974, transmitted the pertinent parts of the denunciation to the Government of Uruguay and requested that it provide the appropriate information;

The Government, in a note date May 23, 1975, requested a ninety-day extension in order to provide the information requested;

The Commission, in a note dated June 12, 1975, granted a thirty-day extension to the Government, which elapsed on July 12, 1975;

The Government of Uruguay, in a note dated July 12, 1975, reported the following to the Commission:

I – The death of Miss Nibia Zabalzagaray

The individual in question was detained on July 29, 1974 and within 24 hours of her detention she committed suicide in her cell.

The competent judicial organ intervened, ordering an opinion from the forensic physician. His reports states: ‘asphyxiation by suspension’ (hanging) as the cause of death.

The intervening Judge, in the absence of proof of any illegality, closed the proceedings on August 2, 1974.

The claimant, in a communication dated July 8, 1975, provided additional information to the Commission, the pertinent parts of which appear below:

NIBIA ZABALZAGARAY – professor of literature, single, 24 years of age.

The individual was detained, tortured and killed, all within a period of 10 hours, on Saturday, June 29, 1974.

At 1:30 a.m., three men dressed in military uniforms and two civilians appeared at her room at the Campomar Home for Workers’ Children in Montevideo (she was a native of the Department of Colonia). They interrogated her as to her political convictions and left with her at 3:00 a.m. and refused to reveal their identity and the place to which they were taking her.

Ten hours later, those in charge of the residence received a phone call informing them that Nibia Zabalzagaray had died and that they should inform some member of the family so that the latter might claim her body at the Military Hospital. Her uncles appeared there and were informed that Nibia was dead on arrival at the Hospital, and that her personal effects and her clothing (she was nude) should be claimed at the barracks of the Engineers Battalion No 5 and Transmissions Service (Camino Casavalle, Montevideo).

The death certificate, issued by Dr José Alejandro Mautone, attributed the death to suicide by hanging.

The relatives were denied the necessary authorization to conduct another autopsy. The corpse, however, underwent an external examination by experts, the results of which contradicted the official ruling.

The true cause of her death is asphyxiation through application of the torture known as the “dry submarine” (application of a plastic bag on the head, thereby preventing breathing) or cardiac arrest under torture.

No judicial action was taken as a result of the death of Nibia Zabalzagaray. No official received any military disciplinary punishment.

The Commission, in a note date October 24, 1975, forwarded to the Government of Uruguay the pertinent parts of the additional information provided by the claimant, and requested that the Government provide the following information:

b) A copy of the legal record and actions taken during the proceedings that were closed by the intervening judge on August 2, 1974, ‘in the absence of proof of any illegality,’ as stated in the corresponding part of the note from Your Excellency’s Government of July 12 of this year.

c) A copy of the autopsy on the corpse of Miss Nibia Zabalzagaray.

The Government of Uruguay, in a note dated May 18, 1976, refused to provide the information specified in the foregoing paragraph;

To date, the Government of Uruguay has still not provided the Commission either a copy of the actions taken during the proceedings or a copy of the autopsy on the corpse of Miss Nibia Zabalzagaray; and

From the information provided by the Government itself, it is concluded that no other proceeding or internal remedy is pending decision,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES:

1. To declare that all available information leads to the presumption that the cause of death of Miss Nibia Zabalzagaray, who was arrested by authorities and died ten hours after her arrest while in the custody of authorities, was a consequence of acts of violence she experienced during her detention.

2. To point out to the Government of Uruguay that the events denounced constitute a serious violation of the right to life (Article I of the American Declaration of the Rights and Duties of Man).

3. To recommend to the Government: a) that it order a thorough and impartial investigation to determine the true cause of the death denounced and, in accordance with Uruguayan laws, punish the individual or individuals responsible, should it be proven that a murder has been committed; b) that it advise the Commission of the measures taken to implement the recommendations contained in the above section within a period of no more than thirty days.

4. To forward this resolution to the Government of Uruguay and to claimants.

5. To include this resolution in its Annual Report to the General Assembly of the Organization (Article 9 (bis), c, iii of the Statute) if the Government has not advised the Commission of the measures it has taken to conduct the investigation recommended under operative paragraph 3 within a thirty-day period.

Adopted at meeting Nº 559th, January 30, 1978 (45th Session) and forwarded to the Government of Uruguay on February 21, 1978.

–Inter-American Commission on Human Rights, Decision on Case 1870, January 20, 1978
–The Spanish text is found here.

While President Jimmy Carter signed the Ameican Convention on Human Rights in 1978, it has never been ratified by the United States.

Syria and the Long Arc of Justice

40 years is a long time to wait for justice, but at least it gives Bashar al-Assad and the leaders of Syria something to look forward to in their old age. Moreover, as the indictments and trials of Slobodan Milosovich, Radovan Karadzich, and Ratko Mladich suggest, things are changing. Al-Assad and his henchmen may not have to wait so long.

The Trenchant Observer

Words and Deeds: President Obama delivers eloquent defense of free speech and democracy at U.N. General Assembly (with text and video links)

Saturday, September 29th, 2012

 

On September 25, U.S. President Barack Obama addressed the United Nations General Assembly, delivering a nuanced and eloquent defense of the right to freedom of speech, liberty, and democracy.

See Remarks by the President to the UN General Assembly, United Nations Headquarters, September 25, 2012. The text of the speech is found here. A video of the speech is found here.

The speech was one of the most significant President Obama has delivered during his presidency. Unlike his Nobel Prize acceptance speech, which was carefully framed with deliberate ambiguity regarding compliance with international law, the September 25 address to the General Assembly constitutes a straightforward and powerful defense of democracy and the values of liberty which it expresses.

In particular, President Obama addressed directly the issue of freedom of speech and violent reactions to protected speech that offends Muslims or members of other religions, including the violent actions that led to the deaths of U.S. Ambassador Chirstopher Stevens and three other Americans in Benghazi on the night of September 11-12, 2012.

On Syria, however, the president did not say anything significant or new.

If this speech were to embody the real and guiding principles of a second-term Obama foreign policy, its content would be highly significant.

But as we and others have remarked, there is often a gap between the president’s eloquent speeches and the actions of his administration in the real world. As The Daily Star noted in its editorial following the speech,

A rough translation to English of lyrics to a popular Arabic song goes something like this: “When I hear your words I am fascinated, When I see your actions I am flabbergasted.”

These are the sentiments of many people in this part of the world on the occasion of Tuesday’s speech by President Barack Obama before the United Nations General Assembly in New York.

They might also apply to past addresses there by Obama’s predecessors George Bush, Bill Clinton, and other presidents over the past several decades.

The verbal prowess might differ, but the content is usually the same. People often hear positive, upbeat and principled rhetoric, the kind that used to give hope to the Palestinian people, or the wider Arab world.

While people in this region might have been genuinely impressed with the content of some of these speeches in the past, the audience these days has become considerably more cynical, and with good reason.

In order to realize any of the lofty goals laid out in such addresses, several things are required: political will, the tools to succeed and a feasible time frame.

When a politician who enjoys the stature and resources that Obama does makes a decision to talk about the burning issues of the day, he should be prepared to make an effort to put out the fire. Otherwise, the difference between words and actions will lose him more and more of the audience.

–Editorial, “Deeds, not words,” The Daily Star (Beirut), September 26, 2012.

If the speech does represent President Obama’s vision of his foreign policy for a second term, if re-elected, he will have his work cut out for him. For starters, he will have to deal much more effectively with the civil war in Syria, and address the human rights violations that were the subject of President Jimmy Carter’s op-ed piece in the New York Times on June 24, 2012.

See The Trenchant Observer, “’A time to break silence': Dr. King on the Vietnam war, and President Carter on America’s human rights violations,” June 27, 2012 (revised June 28, 2012).

This would seem to be a tall order for any president. Yet however skeptical if not cynical we may become, we should always hold out some hope that the President, freed from the perceived imperatives of a re-election campaign, might in his search for a place in history find a higher path that leads away from his vision of perrenial warfare, and towards a vision of peace.

If Obama were to focus on visions of peace and how to achieve them, instead of inevitable grinding war and warfare, he might well find in his 2012 address to the General Assembly a skeletal framework for a foreign policy which though deeds could help place him among the great presidents of the United States.

To achieve that goal, as David Ignatius has pointed out, he will need to emerge from the shadows and into the light where the world can see his and America’s actions.  For only from there, in the light of day, can he lead the international community in pursuit of a reinvigorated vision of international peace, and a strategy of concrete actions through which that vision might be achieved.

Without such a shift in approach, President Obama’s place in history will forever be diminished by his foreign policy failures, his violations of human rights and international law, and the failure of his strategic vision for America’s actions in the world.

The Trenchant Observer

By publicly naming person behind anti-Muslim film, federal officials commit appalling abuse of power

Friday, September 14th, 2012

On dit quelquefois: “Le sens commun est fort rare.”
People sometimes say: “Common sense is quite rare.”
–Voltaire, “Common Sense” (1765)

U.S. federal officials have reportedly identified by name the person behind the making of the film entitled “The Innocence of Muslims”, which has caused outrage in various Muslim countries.

By doing so, they have in effect condemned the individual involved to a high risk of being killed by Muslim extremists. This they have done with no due process of law. They were not required to make the individual’s name public.

While the film has been condemned as abominable and highly inflammatory by Secretary of State Hillary Clinton and others, as far as we know it was produced under the protection of the First Amendment to the Constitution of the United States, which protects freedom of speech.

It is clear that the film should never have been made. It seems to have been deliberately inflammatory.

Nonetheless, even if it is conceivable that the person behind the film is not protected by the First Amendment, certainly he was entitled to his day in court, and just as certainly it was wrong, morally and perhaps also legally, to name him publicly without bringing any charges, thereby exposing him to a very high risk of assassination.

Moreover, there is the question of what law, if any, officials may have thought he violated in making the movie, which could have given rise to federal officials conducting an investigation and making his identity public.

We live in an age where, as Mitt Romney has just proved in his incredibly inappropriate criticism of statements from Benghazi by State Department officials, people don’t always think before they open their mouths.

But federal officials should think before they put a man’s life in danger for actions that appear to be protected by the First Amendment.

There is a need for greater understanding and acceptance on both sides of this debate.

There may be an argument to be made for some form of very limited legislation in the United States that would prohibit actions intentionally undertaken, not to provoke debate and discussion, but rather to inflame religous sentiments and engender religious violence. Something like this exists in Europe. This would be the equivalent to Oliver Wendell Holmes’ famous dictum that freedom of speech does not give someone a right to shout “Fire!” in a crowded theater. This is a tricky area, however, and a slippery slope in terms of curtailing freedom of speech. Any statute would have to withstand a challenge before the Supreme Court.

On the other side, returning to Voltaire, those outraged by the film would do well to read Voltaire, the Encyclopedists, and the other authors of the 18th century Enlightenment, in order to understand better the differences between Church and State in Western countries, the right to free speech which was forged through the French and the American revolutions of the 18th century, and the right to freedom of religion which received a great boost through the 16th century Reformation and the Thirty Years’ War in the 17th century.

These values are important to Western Civilization, and are now enshrined in the international law of human rights.  They also deserve respect. 

Understanding is a two-way street.

Again, the publication of the name of the person behind the film by federal officials represented an appalling abuse of power, by individuals seemingly oblivious to the consequences of what they were doing, in a case which would appear to involve the exercise of First Amendment rights under the U.S. Constitution.

The Trenchant Observer

South Africa strays from Mandela’s vision, abstaining in Security Council vote on Syria— Update #69 (July 27)

Friday, July 27th, 2012

The following article is divided into five sections or parts. Due to its length, the reader may wish to read one or more different sections at different times. The sections are:

(1) South Africa’s Abstention in the Vote on Draft Resolution S/2012/538
(2) South African Statements in Defense of its Abstention in the Vote
(3) Statement of Ian Davidson, Shadow Minister of Foreign Affairs of the Democratic Alliance
(4) The Text of Security Council Draft Resolution 538
(5) Mandela’s Vision

South Africa’s Abstention in the Vote on Draft Resolution S/2012/538

South Africa abstained in the July 19 vote on Security Council draft Resolution S/2012/538 on Syria, sponsored by France, Germany, Portugal,the United Kingdom and the United States. The resolution would have extended the UN observer mission in Syria (UNSMIS) for 45 days, and threatened but did not specify the imposition of sanctions by the Security Council (pursuant to a future vote) if the al-Assad government did not comply with key provisions of the Security Council’s 6-point peace plan (also known as the Kofi Annan 6-point peace plan).

Forgetting that its own liberation struggle had benefited from economic sanctions imposed by the Security Council, South Africa gave tacit support to Russia and China and their argument that the Security Council had no right to interfere in the domestic affairs of Syria.

South African Statements in Defense of its Abstention in the Vote

In a statement in the Security Council following the vote and South Africa’s abstention on draft resolution S/2012/538, the South African representative, Mr. Mashabane, stated the following:

Mr. Mashabane (South Africa): South Africa strongly condemns the continuing violence and the huge loss of life in Syria. It is now 16 months since the crisis began, and there is no end in sight. Instead, the security and humanitarian situations have become worse. The deteriorating situation in Syria highlights the urgency for all sides to stop armed violence in all its forms, implement the six-point plan presented by Joint Special Envoy Kofi Annan, and move rapidly towards a political dialogue and a peaceful, democratic, Syrian-led transition.

The International Federation of Red Cross and Red Crescent Societies has just classified the situation in Syria as meeting the conditions of an internal armed conflict. The United Nations High Commissioner for Human Rights has made a similar statement. This means that the situation has reached the threshold of a civil war, in which all parties have responsibilities and obligations under international humanitarian law.

The highest priority should be to stop the killing and end the suffering of civilians. The suicide bombing in Damascus yesterday, which killed the Syrian Defence Minister and others, coupled with frequent horrific massacres in various parts of the country, clearly indicates that there is more than one party to the conflict. This volatile situation has also become fertile ground for terrorist groups. Acts of violence committed by any party are unacceptable and a clear violation of their commitments under the six-point plan, and should be condemned. Reports of the continued use of heavy weapons by the Syrian security forces are also of serious concern to us.

South Africa strongly supports the efforts of Joint Special Envoy Kofi Annan and believes that his plan is the only credible mechanism that could deliver a positive and realistic outcome. Coupled with the Annan plan is the final communiqué of the Action Group for Syria (S/2012/523, annex), adopted in Geneva on 30 June. It constitutes a significant proposal on the way forward in Syria and has been supported by all permanent members of the Security Council. We should not fail to support Mr. Annan, as his efforts may be the only branch to which to cling before the seismic currents of a bloody civil war push Syria over the brink into a state of total collapse.

South Africa is disappointed that, because of the divisions among the members of the Council, the Council has been prevented from executing its responsibilities. Differences within the Council should be addressed in a spirit of compromise and mutual respect, and with the Council’s broader responsibility in mind. All members of the Council have consistently expressed their support for the Kofi Annan plan, the Geneva action plan communiqué and the United Nations Supervision Mission in Syria UNSMIS).

Yet the common cause that we affirmed when we adopted resolutions 2042 (2012) and 2043 (2012) three months ago has not seemed to prevail. We should have shown the utmost maturity in strategically executing these crucial tasks, taking into account the realities of the situation on the ground. Instead, we allowed narrow interests to destroy our unity of purpose.

We agree with the Joint Special Envoy that the Council must insist that these decisions be implemented, that a strong message should be sent to all parties involved, and that there will be consequences for their non-compliance with its decisions. We fail to see, however, how the text that was submitted today by the sponsors would end the violence or contribute to the implementation of the six-point plan. Instead, the text, in an unbalanced manner, threatens sanctions against the Government of Syria without realistically allowing any action to be taken against the opposition, which would be permitted to defy the six-point plan without consequence. In similar situations where the international community, including the Security Council, has preferred one side over the other, such bias has resulted in the polarization of the conflict. This is especially true for such fractious societies as Syria’s.

The failure of the Council today to reach a balanced agreement threatens the Kofi Annan plan and undermines the possibility of finding a peaceful political solution to the Syrian crisis. Our failure to renew the mandate of UNSMIS — the only functional tool for verifying and corroborating information on the ground and supporting the Annan plan, as recommended by the Secretary-General — is disappointing. While we are concerned about the safety of the observers, South Africa continues to believe that UNSMIS has been a critical part of our effort to find a solution to the Syrian crisis, and should therefore continue its work in one form or the other when conditions on the ground so permit. SouthAfricais therefore deeply disappointed that the future of UNSMIS is under threat because of the divisions in the Council.

It is for these reasons that South Africa abstained in the voting on draft resolution S/2012/538. SouthAfricastands ready to work with all members of the Council to achieve a strong, balanced outcome in support of Kofi Annan’s efforts and a renewal of the UNSMIS mandate.

In conclusion, for the time being South Africa supports the proposal for a possible technical rollover of UNSMIS for a very short term.

–United Nations Security Council, 6810th meeting, 19 July, 2012, U.N. Doc. S/PV.6810, at pp. 11-12.

The Deputy Foreign Minister, Ebrahim Ebrahim, made virtually the same points in a statement issued on July 20, arguing that the resolution was not balanced.

See

SAPA, “South Africa speaks out on violence in Syria; South Africa voices concern over killings of civilians in Syria as resolution that would have extended UN observer mission is vetoed,” Business Live (South Africa), July 19, 2012.

Khadija Patel, “Analysis: Tracking South Africa’s Syria policy,”
Daily Maverick (Johannesburg), July 23, 2012.

Mandy Rossouw, “Pretoria takes soft stance on Syria,” City Press (Pretoria), July 22, 2012.

Oluwaseun Oluwarotimi (NewsWorld), “Syria; UN Security Council, A Failure- South Africa,” Leadership (Abuja), July 23, 2012.

However, the statements of the South African Security Council Representative and the Deputy Foreign Minister seeking to justify South Africa’s abstention do not stand up to close scrutiny, in the light of the actual text of Security Council draft resolution S/2012/538.

This is evident from a comparison of their remarks and the actual text of the draft resolution itself.

The full text of Ebrahim’s statement follows:

Statement by the Deputy Minister of International Relations and Cooperation, Ebrahim Ebrahim, on the UN Security Council vote on the extension of the mandate of the UN Supervision Mission in Syria (UNSMIS), 20 Jul 2012

South Africa deplores the violence and the tremendous loss of life in Syria, which is spiraling out of control. I reiterate that our highest priority is to stop the killing. We feel that the only way to achieve this is through the Annan plan for a political transition.

The bomb in Damascus earlier this week, which resulted in the death of senior government officials including the Defence Minister, Daoud Rajha, coupled with the many horrific massacres that have taken place over the past few weeks, clearly shows that there is more than one side to the conflict. It is also obvious that all sides are heavily armed.

We have noted the International Committee of the Red Cross and Red Crescent’s classification of the escalating situation in Syria as meeting the conditions of an internal armed conflict. The United Nations (UN) High Commissioner for Human Rights also stated that: “there are indications that the situation in Syria, at least in certain areas, may amount to a non-international armed conflict thus entailing obligations on both sides under international law”.

This confirms that the situation has reached a threshold of a civil war in which all parties have responsibilities and obligations under international humanitarian law.

It is therefore essential that the Security Council address this dire situation in line with the United Nations Charter. The Charter determines that the Council should make recommendations for conflict resolution and take account of failures of implementation with its decisions: “without prejudice to the rights, claims and positions of the parties concerned”. Chapter VII of the UN Charter therefore mandates the Security Council to address the conduct of all parties to a conflict equally.

During the past week, Kofi Annan, in response to the escalating violence and lack of movement in the peace process, requested the Council to send a strong message to all parties that there would be consequences for their non-compliance with the Annan plan.

It has been incorrectly reported that South Africa was opposed to sanctions on the Syrian government. I wish to emphasise that South Africa fully supports the request of the Joint Special Envoy for stern action. Our problem with the resolution voted on yesterday was not the issue of sanctions on the government per se, but the fact that the text did not provideformeasures against the opposition for non-compliance with the Annan plan. (emphasis added).

It was on this basis that South Africa made recommendations to balance the text. These proposals were rejected by the drafters of the resolution, leaving South Africa no option but to abstain in the vote

This was not merely an issue of language. South Africa takes it responsibility as a member of the Security Council extremely seriously, because its decisions impact the lives of ordinary people. Our view is that a one-sided resolution would only make the situation on the ground worse, pushing the government to further pursue the military option and emboldening the opposition to continue to reject talks. In a complex, divided society such as Syria, there can be no military solution.

We saw this clearly in Iraq. Ultimately, the parties in Syria will have to negotiate a settlement. The question is whether they do so now or after a bloody and protracted civil war. We are therefore deeply disappointed that the Council was not able to apply pressure to both sides to bring an end to the violence.

The outcome of the vote reflects the deep divisions and narrow interests of the five Permanent Members of the Security Council. These divisions and the inability of the Security Council to address the realities of the appalling situation on the ground in a balanced and mature manner, is a failure by the Security Council to execute its primary mandate, namely the maintenance of international peace and security.

South Africa continues to call for a Syrian-led negotiated all-inclusive dialogue to establish a politicaltransitionthat will reflect the will of the Syrian people. This is the ultimate aim of the Joint Special Envoy of the United Nations and the League of Arab States, Mr Kofi Annan, and the only hope for the Syrian people.

While we are concerned about the safety of observers, South Africa continues to believe that UNSMIS plays a critical role in supporting the efforts of Mr Annan, including through verification and facilitating local-level cease-fires. The withdrawal of UN Supervision Mission in Syria (UNSMIS) will only result in the conflict on the ground spiraling into an all-out war, which will have a severe impact on the stability of the entire region. South Africa is deeply concerned about such a prospect.

Currently there are two competing resolutions before the Security Council to extend the mandate of UNSMIS, which South Africa supports. We hope the Security Council will be able to rise above its deep divisions and adopt the extension unanimously.

(Statement issued by Department of International Relations and Cooperation, July 20, 2012)

Statement of Ian Davidson, Shadow Minister of Foreign Affairs of the Democratic Alliance

Ian Davidson, the shadow minister for foreign affairs of the Democratic Alliance, expressed his disagreement with the Zuma government’s abstention in the Security Council in a statement issued on July 20, 2012.

See “DA: Statement by Ian Davidson, Democratic Alliance Shadow Minister of InternationalRelationsand Co-operation, on the Department of International Relations and Co-operation’s stance on Syria, Polityorg.com, July 20, 2012.

The full text of Davidson’s statement follows:

While the death toll in Syria continues to rise, South Africa’s representatives in the United Nations (UN) Security Council have once again abstained from voting in support of decisive UN action in Syria. Once again, the Department of International Relations and Co-operation (DIRCO) is allowing autocratic regimes with poor human rights records to dictate South Africa’s foreign policy.

After recognising yesterday that the violence in Syria is “spinning out of control”, South Africa has yet again abstained from voting on the UN Security Council (UNSC) Resolution aiming at de-escalating conflict in Syria.

UN action was effectively neutered by vetoes from Russia and China. By abstaining from the vote, South Africa has sided with its fellow BRICS members. While the Syrian people are being bombed by their own government and the increasing armament of both the government forces and rebel groups has turned the Syrian conflict into an international security crisis, South Africa chose to remain on the fence.

DIRCO defends this decision by claiming that the world requires a “balanced” intervention which recognises the wrongdoings of all parties to the conflict and paves the way for negotiation.

The proposed UN resolution stipulated a deadline for an end to the use of heavy weapons, called for the withdrawalofSyrian forces from towns and cities and proposed sanctions should this deadline not be met. The dream of a negotiated settlement will never be realised without more decisive initial steps to de-escalate the violence.

South Africa should not be caught on the wrong side of history again, as with our infamous flip-flop on Libya. In abstaining from this vote, we are losing credibility as a country which believes in human rights and a just international order and we are alienating the West and Arab League nations more directly affected by the Syrian conflict.

Instead of using our position as a member of BRICS to encourage China and Russia to do the right thing, we are being caught in the slipstream of their bad decisions. Our association with China and Russia in this regard will undermine our legitimacy in the UN Security Council and could derail our efforts to reform this structure to the benefit of smaller and developing nations.

DIRCO fence-sitting raises questions about our capacity to make tough decisions that may offend some of our more dubious friends.

The Text of Security Council Draft Resolution 538

Draft Resolution 538 was in fact quite balanced, in view of the events of the last year and the atrocities Bashar al-Assad has committed and is committing against his opponents, who began their protest peacefully in March, 2011. The actual text of draft resolution 2012/538 follows:

Security Council: Text of draft resolution on Syria
Jul 19, 2012
(France, Germany, Portugal, United Kingdom of Great Britain and Northern Ireland and United States of America: draft resolution)

The Security Council,

Recalling its Resolutions 2043 (2012) and 2042 (2012), and its Presidential Statements of 3 August 2011, 21 March 2012 and 5 April 2012,

Reaffirming its strong commitment to the sovereignty, independence, unity and territorial integrity of Syria, and to the purposes and principles of the Charter,

Reaffirming alsoits support to the Joint Special Envoy for the United Nations and the League of Arab States, Kofi Annan, and his work, following General Assembly resolution A/RES/66/253 of 16 February 2012 and relevant resolutions of the League of Arab States, aimed at securing full implementation of his six-point plan in its entirety, as annexed to resolution 2042 (2012),

Condemning the Syrian authorities’ increasing use of heavy weapons, including indiscriminate shelling from tanks and helicopters, in population centres and failure to withdraw its troops and heavy weapons to their barracks contrary to paragraph 2 of resolution 2043 (2012),

Condemning the armed violence in all its forms, including by armed opposition groups, and expressing grave concern at the continued escalation of violence, and expressing its profound regret at the death of many thousands of people in Syria,

Condemning the continued widespread violations of human rights by the Syrian authorities, as well as any human rights abuses by armed opposition groups, and recalling that those responsible shall be held accountable,

Condemning the series of bombings that have made the situation more complex and deadly, some of which are indicative of the presence of well-organised terrorist groups,

Deploring the deteriorating humanitarian situation and the failure to ensure timely provision of humanitarian assistance to all areas affected by the fighting contrary to point 3 of the Envoy’s six-point plan, reiterating its call for the Syrian parties to allow immediate, full and unimpeded access of humanitarian personnel to all populations in need of assistance, in particular to civilian populations in need of evacuation, and calling upon all parties in Syria, in particular the Syrian authorities, to cooperate fully with the United Nations and relevant humanitarian organizations to facilitate the provision of humanitarian assistance;

Condemning the continued detention of thousands of Syrians in networks of Government-run facilities and deploring that there is no freedom of assembly contrary to points 4 and 6 of the six-point plan, and recalling the urgency of intensifying the pace and scale of release of arbitrarily detained persons, and reiterating the need for Syrians to enjoy the freedom to assemble, including to demonstrate peacefully and freedom of movement for journalists throughout the country, as part of the necessary conditions for a political transition,

Having considered the Secretary-General’s report on UNSMIS dated 6 July 2012, commending United Nations Supervision Mission in Syria (UNSMIS) personnel for their continued efforts in a dangerous and volatile environment, and deploring that, due to the failure of the parties to implement the six-point plan and to the level of violence, monitoring access restrictions and direct targeting, the Mission’s operational activities were rendered unworkable, and supporting the Secretary-General’s recommendation that a shift in Mission structure and focus should be considered,

Stressingthat rapid progress on a political solution represents the best opportunity to resolve the situation in Syria peacefully, welcoming in this regard the Final Communiqué of the Envoy’s 30 June Action Group meeting, and noting that progress towards an atmosphere of safety and calm is key to enabling a credible transition,

Welcoming the Syrian Opposition Conference held under the auspices of the League of Arab States in Cairo on July 3, 2012, as part of the efforts of the League of Arab States to engage the whole spectrum of the Syrian opposition, and encouraging greater cohesion among the opposition,

Noting the Secretary-General’s 6 July 2012 call on the Security Council to provide the necessary support and ensure sustained, united and effective pressure on all concerned to ensure compliance with its decisions and create conditions for the success of a political solution envisaged by the Action Group,

Determining that the situation in Syria constitutes a threat to international peace and security,

Acting under Chapter VII of the Charter of the United Nations,

1. Expresses grave concern at the escalation of violence, and the failure of the parties, in particular the Syrian authorities, to implement the Envoy’s six-point plan as annexed to resolution 2042 (2012), thus not permitting the creation of a political space that would allow for meaningful political dialogue, and calls upon all parties to recommit immediately and without waiting for the actions of others to a sustained cessation of violence in all its forms and implementation of the six-point plan;

2. Endorsesin full the 30 June Action Group Final Communiqué and its underlying guidelines and principles (Annex);

Enabling Transition: Immediate implementation of the Envoy’s six-point plan

3. Demandsthe urgent, comprehensive, and immediate implementation of, all elements of the Envoy’s six-point proposal as annexed to resolution 2042 (2012) aimed at bringing an immediate end to all violence and human rights violations, securing humanitarian access and facilitating a Syrian-led politicaltransitionas outlined in the Annex, leading to a democratic, plural politicalsystem, in which citizens are equal regardless of their affiliations, ethnicities or beliefs, including through commencing a comprehensive political dialogue between the Syrian authorities and the whole spectrum of the Syrian opposition;

4. Decidesthat the Syrian authorities shall implement visibly and verifiablytheir commitments in their entirety, as they agreed to do in the Preliminary Understanding and as stipulated in resolution 2042 (2012) and 2043(2012), to (a) ceasetroopmovements towards population centres, (b) cease all use of heavy weapons in such centres, (c) complete pullback of military concentrations in and around population centres, and to withdraw its troops and heavy weapons from population centres to their barracks or temporary deployment places to facilitate a sustained cessation of violence;

5. Demands that all parties in Syria, including the opposition, immediately cease all armed violence in all its forms, thereby creating an atmosphere conducive to a sustained cessation of violence and a Syrian-led political transition;

6. Expresses grave concern at the increasing numbers of refugees and internally displaced persons as a result of the ongoing violence, and reiterates its appreciation of the significant efforts that have been made by the States bordering Syria to assist those who have fled across Syria’s borders as a consequence of the violence, and requesting UNHCR to provide assistance as requested by member states receiving these displaced persons,

Transition

7. Demands that all Syrian parties work withthe Office of the Joint Special Envoy to implement rapidly the transition plan set forth in the Final Communiqué in a way that assures the safety of all in an atmosphere of stability and calm;

Accountability

8. Recalls that all those responsible for human rights violations and abuses, including acts of violence, must be held accountable;

9. Decides that the Syrian Government shall provide the UN Independent International Commission of Inquiry on the Syrian Arab Republic and individuals working on its behalf immediate entry and access to all areas of Syria, decides that the Syrian authorities shall cooperate fully with the Commission of Inquiry in the performance of its mandate;

UNSMIS

10. Decides to renew the mandate of the United Nations Supervision Mission in Syria (UNSMIS) for a period of 45 days, on the basis of the Secretary-General’s recommendation to reconfigure the Mission to increase support for dialogue with and between the parties, and enhance attention to the political track and rights’ issues across the six-point plan;

11. Requests the Secretary-General to retain the minimum military observer capacity and requisite civilian component necessary to promote forward steps on the six-point plan through facilitation of political dialogue and to conduct verification and fact-finding tasks;

12. Condemns all attacks against UNSMIS, reaffirms that perpetrators of attacks against UN personnel must be held to account, demands that the parties guarantee the safety of UNSMIS personnel without prejudice to its freedom of movement and access, and stresses that the primary responsibility in this regard lies with the Syrian authorities;

13. Demands that the Syrian authorities ensure the effective operation of UNSMIS by: facilitating the expeditious and unhindered deployment of its personnel and capabilities as required to fulfil its mandate; ensuring its full unimpeded, and immediate freedom of movement and access as necessary to fulfil its mandate, underlining in this regard the need for the Syrian authorities and the United Nations to come rapidly to an agreement on appropriate air transportation assets for UNSMIS; allowing its unobstructed communications; and allowing it to freely and privately communicate with individuals throughout Syria without retaliation against any person as a result of interaction with UNSMIS;

Compliance

14. Decides that, if the Syrian authorities have not fully complied with paragraph 4 above within ten days, then it shall impose immediately measures under Article 41 of the UN Charter;

Reporting and Follow-Up

15. Requests the Secretary-General to report to the Council on the implementation by all parties in Syria of this resolution within 10 days of its adoption and every 15 days thereafter;

16. Expresses its intention to assess the implementation of this resolution and to consider further steps as appropriate;

17. Decides to remain seized of the matter.

Curiously, the text of draft Security Council resolution S/2012/538 is not yet available on the United Nations web site. The link to the document does not lead to the document. All of which reminds the Observer of a story once told him by a former American high official in the United Nations during the early years of the Cold war. The Soviets, he recounted, had always placed a high value on controlling the printing presses at the U.N., through the appointment of the offical with authority over them. This gave them considerable leverage within the organization. Could there be a vestige of this old Cold War strategem still at work in the bowels of the U.N.?

South Africa’s Leadership of Democratic Forces in Africa, and Beyond

As pointed out in a previous article, with Nkosazana Dlamini-Zuma now heading the African Commission, it is even more important than it was before that South Africa take seriously its responsibilities as a leader of the democratic forces in Africa–and beyond.

See The Trenchant Observer, “Security Council adopts Resolution 2059 extending mandate of UNSMIS for 30 days (with text); fighting and risks intensify—Obama’s Debacle in Syria — Update #67 (July 20),”
July 20, 2012.

Ironically, on July 22 it was reported by News24 that the staff of the South African embassy in Damascus had been forced to flee the fighting in Damascus, and that the embassy was moving its personnel to Lebanon for safety. According to an earlier SABC report, Shaune Byneveldt, ambassador to Syria, had arrived back in South Africa as fighting intensified in Damascus.

See

“SA embassy staff flee Syria,” News24 (South Africa), July 22, 2012.

Karl Gernetskysa, “SA moves staff to Lebanon as violence worsens in Syria; Observers have questioned if South Africa’s lack of a firmer stance on Syria could lead to embarrassment similar to that caused by indecision over Libya,” Business Day, July 24, 2012.

The bottom line is that South Africa adopted the position of Russia and China, even though it “abstained” on the resolution instead of voting against it. The argument that draft Resolution was unbalanced because it threatened sanctions only against the Syrian government and not against the rebels is specious, as a close reading of operative paragraphs (4) and (5) of the resolution makes clear.

Paragraph 4 calls on the government to “(a) cease troop movements towards population centres, (b) cease all use of heavy weapons in such centres, (c) complete pullback of military concentrations in and around population centres, and to withdraw its troops and heavy weapons from population centres to their barracks or temporary deployment places to facilitate a sustained cessation of violence.”

Operative paragraph 5 states clearly that the Security Council:

5. Demands that all parties in Syria, including the opposition, immediately cease all armed violence in all its forms, thereby creating an atmosphere conducive to a sustained cessation of violence and a Syrian-led political transition;

There is absolutely nothing unbalanced about the draft resolution, and to argue otherwise is to argue in generalities that depend for their persuasive force on the ignorance of those to whom they are addressed. That not only Russia and China could make such arguments, but also South Africa (and Pakistan) is shameful and defenseless.

In the context of events in Syria, the fact that Russia and China had blocked effective Security Council action since vetoing a Security Council resolution in October, 2011, and after four months of Kofi Annan’s “six-point plan” producing absolutely nothing in terms of results, South Africa’s vote (like that of Pakistan, which also abstained) can only be interpreted as supporting the Russian and Chinese position.

This vote of abstention represented a complete abdication of South Africa’s responsibilities, as a democratic nation and leader of the democratic forces in Africa, and beyond, to support concrete action by the Security Council to deal effectively with the Syrian crisis.

Draft Resoluiton 538 was in fact quite balanced, in view of the events of the last year and the atrocities Bashar al-Assad has committed, against opponents who began their protest peacefully in March 2011.

Nelswon Mandela’s Vision

July 19, 2012 was a shameful day for South Africa.

One day after Nelson Mandela’s 94th birthday, which was celebrated throughout the country by schoolchildren singing “Happy Birthday” to him, South Africa deviated sharply from Mandela’s vision, articulated in his 1993 Nobel Prize Acceptance Speech as follows:

We live with the hope that as she battles to remake herself, South Africa, will be like a microcosm of the new world that is striving to be born.

This must be a world of democracy and respect for human rights, a world freed from the horrors of poverty, hunger, deprivation and ignorance, relieved of the threat and the scourge of civil wars and external aggression and unburdened of the great tragedy of millions forced to become refugees.

The processes in which South Africa and Southern Africa as a whole are engaged, beckon and urge us all that we take this tide at the flood and make of this region as a living example of what all people of conscience would like the world to be.

We do not believe that this Nobel Peace Prize is intended as a commendation for matters that have happened and passed.

We hear the voices which say that it is an appeal from all those, throughout the universe, who sought an end to the system of apartheid.

We understand their call, that we devote what remains of our lives to the use of our country’s unique and painful experience to demonstrate, in practice, that the normal condition for human existence is democracy, justice, peace, non-racism, non-sexism, prosperity for everybody, a healthy environment and equality and solidarity among the peoples.

Moved by that appeal and inspired by the eminence you have thrust upon us, we undertake that we too will do what we can to contribute to the renewal of our world so that none should, in future, be described as the “wretched of the earth”.

Let it never be said by future generations that indifference, cynicism or selfishness made us fail to live up to the ideals of humanism which the Nobel Peace Prize encapsulates.

Let the strivings of us all, prove Martin Luther King Jr. to have been correct, when he said that humanity can no longer be tragically bound to the starless midnight of racism and war.

Let the efforts of us all, prove that he was not a mere dreamer when he spoke of the beauty of genuine brotherhood and peace being more precious than diamonds or silver or gold.

Let a new age dawn!

Thank you.

–Nelson Mandela, 1993 Nobel Peace Prize Acceptance and Nobel Lecture, December 10, 1993.

The Trenchant Observer

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For links to other articles by The Trenchant Observer on this topic, and others, click on the title at the top of this page to go to the home page, and then consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here.

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.

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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

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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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The Clock is Ticking: U.S. Application of the Torture Convention

Saturday, February 20th, 2010

The U.S. Justice Department issued a report on February 19, 2010 finding that the lawyers who drafted “the torture memos” in the Bush administration were not guilty of professional misconduct. According to the New York Times,

After five years of often bitter internal debate, the Justice Department concluded in a report released Friday that the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics for terrorism suspects used flawed legal reasoning but were not guilty of professional misconduct.

The report, rejecting harsher sanctions recommended by Justice Department ethics lawyers, brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.

The ethics report is not the last word on the emotional national dispute about torture. In August, Attorney General Eric H. Holder Jr. opened a criminal investigation to determine whether the C.I.A. interrogation program broke the law, and that inquiry is expected to continue for months.

Eric Lichtblau and Scott Shane, New York Times, February 20, 2009

Under the U.N. Convention Against Torture and and Other Cruel, Inhuman or Degrading Punishment or Treatment, the United States, which is a party to the treaty, is obligated to prosecute or extradite individuals found within its jurisdiction who evidence suggests are guillty of torture.

Torture is defined in Art. 1(1) of the Convention as:

…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

There are no exceptions to the prohibition against torture, and superior orders are no excuse. Art. 2(2) and Art. 2(3) provide:

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Each party is obligated under Article 4 to ensure that acts of torture as defined in the convention are crimes under its domestic law, as follows:

Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The obligations to arrest, investigate and prosecute or extradite to another party are clearly established in the Convention.

Article 5 sets forth the obligations of a party such as the United States to prosecute individuals for torture when the crimes were committed within its territory or by its nationals:

Article 5
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(1) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(2) When the alleged offender is a national of that State;

The authority and obligation of other countries who are parties to the Convention to arrest and prosecute or extradite individuals who may be guilty of torture are set forth in Arts. 6 and 7, in the following terms:

Article 6
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence….
2. Such State shall immediately make a preliminary inquiry into the facts.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

Article 7
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

Studied Inaction

While President Barack Obama has ordered an end to torture on his watch, his actions in the area of bringing to justice those who may have violated the Torture Convention have been disappointing.

Obama has not separated from government service those who it has been acknowledged played a significant role in the torture program.

Obama’s Secretary of Defense, Robert Gates, has issued an overly broad directive banning the release to the public of any photograph relating to the commission of torture by U.S. officials from September 11, 2001 through January 22, 2009.

Now, the Justice Department internal review of the conduct of the lawyers who wrote and approved the “torture memos” has concluded, in what the New York Times described as the Department’s “final judgment”, that these individuals were not guilty of “professional misconduct” and that the corresponding legal opinions were “flawed but not grossly incompetent or unethical”.

To be sure, Attorney General Eric H. Holder, Jr. opened a criminal investigation—finally–in August, 2009 to determine whether the CIA interrogation program broke the law. According to the New York Times, quoted above, “that investigation is expected to continue for many months.”

When Chickens Come Home to Roost

Justice indefinitely delayed amounts to justice denied.

To avoid this result, the U.N. Convention Against Torture provides for arrest and prosecution by other Parties when the country with the primary responsibility fails to prosecute as required by the Convention.

Up until now, parties to the Convention have given the United States considerable leeway in dealing with apparent violations of the Convention by officials during the George W. Bush administration (2001-2009), for offenses that happened as long as seven to or eight years ago.

They have shown continuing forbearance in granting Obama time to investigate and prosecute those responsible for violations of the treaty. When it becomes clear to them that the president has no intention to prosecute these individuals, however, this forbearance could suddenly come to an end, at least in the mind of a prosecutor or an investigating magistrate in one or another country that is a party to the Convention.

Recommended Steps

At a minimum, the President should seek an opinion from the Legal Adviser at the State Department regarding the international legal obligations of the United States under the Torture Convention to prosecute those individuals responsible for violating the Convention’s prohibitions, and make that opinion public.

Moreover, he should instruct Attorney General Holder to broaden his inquiry beyond the CIA to include all government officials—not just CIA officials–who might have been guilty of violating the Convention and who the United States is obligated to prosecute under its terms.

Congress should hold monthly or at least quarterly hearings requiring the attendance of Attorney General Holder and full reporting by the Justice Department of the activities it has undertaken in its investigation(s) into the possible commission of torture or related crimes, the remaining steps to be undertaken by the Justice Department, and when the report and indictments where appropriate might be expected.

Some Obama supporters will argue that his administration should drag the investigation out, at least past the November 2010 elections. This may in fact be prudent and justifiable if such action is supported by legal and not merely political considerations. However, it will not be possible to drag the investigation out past the presidential elections in 2012.

The Clock is Ticking

If Obama does not get out in front of this issue, he could be thrown into a politically disastrous position if and when the judiciary of another country that is a party to the Convention arrests or issues an arrest warrant for an individual wanted for prosecution under the terms of the Convention.

The President should act now to avoid this eventuality.

Torture will not be done with him, or with us, until we are all done with torture.

The Trenchant Observer

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