Human Rights and the War on Terror

What is terrorism? targeting civilians is a significant part of the terrorist’s modus operandi

Who or what is a terrorist? Definitional problem “One man’s terrorist is another man’s freedom fighter” Mandela & The ANC? Hezbolla? Palestinians trying to throw off occupation?

Human Rights Duty to respect and to ensure (negative + positive obligations of states)

UNSC Res 1566 Reminding States that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law,

HR and the ‘War on Terror’ From the documentary, what are some of the rights implicated in the so-called ‘war on terror’?

Torture Jus cogens norm (Prosecutor v Furundzija Case No.: IT-95-17/1-T, ¶153 (ICTY); Belgium v Senegal <http://www.icj-cij.org/docket/files/144/17064.pdf>¶99 (ICJ). Non-refoulement obligation (CAT article 3; Furundzija (obiter)ICTY; Soering v The United Kingdom[1989] ECHR 14038/88 (ECtHR).) Non-Admissibility of torture evidence

Torture Convention Against Torture (CAT) Universal Declaration of Human Rights, Art. 5. (The UDHR is not a biding instrument of law. But a # of its provisions reflect customary international law) ICCPR, Art 7. European Convention on Human Rights (ECHR), Art 3. American Convention on Human Rights (ACHR), Art 5. African Charter on Human and Peoples’ Rights (ACHPR), Art 5.

HR and the ‘War on Terror’ https://www.youtube.com/watch?v=4PNYhnZsiM4

What is torture? CAT, Article 1 1. For the purposes of this Convention, the term "torture" means 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. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

What is torture? Based on Article 1, for torture to be found: there must be an act by which severe pain or suffering whether mental or physical is inflicted; this infliction must be intentional; for a number of purposes such as obtaining from him or a third person information or a confession; and, It must be 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.

Cruel, Inhuman, Degrading Treatment CAT, Art 16: 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Distinguishing bet. Torture and Cruel and Inhumane Treatment Ireland v United Kingdom 5310/71 (11-18, 96-104 and, 150, 167, summary (after para 246) Selmouni (7-27 (skim), 70, 82-85, 87, 95-106 Cantoral-Benavides v Peru (1, 63 (skim), 80-104) http://www.corteidh.or.cr/docs/casos/articulos/seriec_69_ing.pdf El-Masri v Macedonia- 154-160, 223, 230-240

Ireland (a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers"; (b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

Ireland distinction derives principally from a difference in the intensity of the suffering inflicted... Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.(para 167)

Selmouni 95. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see the following judgments: Ireland v. the United Kingdom cited above, p. 65, § 163; Soering cited above, pp. 34-35, § 88; and Chahal v. the United Kingdom, 15 November 1996, Reports 1996-V, p. 1855, § 79). 96. In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the European Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see the Ireland v. the United Kingdom judgment cited above, pp. 66-67, § 167).

https://www.youtube.com/watch?v=0BRg9PUYyjc (ex-CIA lawyer) https://www.youtube.com/watch?v=d4Tq3ldZkko (ex-CIA director) https://www.youtube.com/watch?v=CCze9AMPRLc (waterboarding simulation) https://www.youtube.com/watch?v=zGaG5-VL9P8 (sounds in a box)

Life, Liberty and Security of the Person Eg ECHR, Art 5 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. http://www.amnestyusa.org/our-work/issues/security-and-human-rights/guantanamo/unlawful-detention-at-guantanamo

Life, Liberty and Security of the Person El-Masri- 154-160, 223, 230-240

Public Emergency Provisions Article 4 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Ticking Time Bomb? https://www.youtube.com/watch?v=ekbVagQGVqs (can we beat ISIS without torture?) https://www.youtube.com/watch?v=M4sduqzV_1U (Alan Dershowitz interview) https://www.youtube.com/watch?v=zmeF2rzsZSU (John Oliver on the efficacy of torture) Elaine Scarry,Five Errors in the Reasoning of Alan Dershowitz< http://www.nickflynn.org/bomb_ticking_pdfs/10_scarry.pdf> Susan Marks has also sought to rebuff Dershowitz Alan Dershowitz has advocated the use of torture warrants Public Committee Against Torture Case HCJ 769/02 (High Court of Justice of Israel) (Necessity as a defence to individual criminal liability)

DEBATE This House would torture terrorist suspects in the interest of national security Government Proposes// Opposition Opposes 1st speaker- 8 mins 2nd speaker- 5 mins 3rd speaker- 2 minutes Rebuttal (a 4th speaker)- 2 minutes Using resources on the previous slide and others than you can find, devise arguments as to the justifiability of torturing terror suspects