Do unto others . . .
America fights international covenants against torture
Chicago Tribune, Sep. 1, 2002
By Doug Cassel. Doug Cassel is head of the Center for International Human Rights at Northwestern University Law School
Does the Bush administration give a hoot about human rights?
The question arises from its stance on issues ranging from torture to holding human-rights violators accountable, aid to repressive militaries, and civil liberties in the “war” against terrorism. Perhaps the most startling case example is its marriage of convenience with Fidel Castro to oppose a new United Nations agreement on torture. The current Convention Against Torture, joined by the first President George Bush, requires governments to punish torturers but does little to prevent torture.
Partly as a result, torture still ravages people worldwide. Surveys by Amnesty International regularly find torture practiced in dozens of countries. In hopes of curbing the practice, Costa Rica has long pushed for a UN protocol that would require governments to open their jails to inspections by an international group of experts. The proposal is similar to a European treaty under which experts have carried out inspections in more than 40 European countries–including British and Russian centers for detaining terrorists.
The experts then make confidential recommendations to governments. According to the Council of Europe, their work has “led to a wide range of improvements,” such as better police supervision, new legal safeguards, bans on dangerous forms of restraint and even the closing of some detention facilities.
Costa Rica’s proposal was negotiated for a decade and finally approved this spring by the UN Office of the High Commissioner for Human Rights. In July, it moved to the next step, the UN’s Economic and Social Council.
But there the United States moved to block the vote and proposed to reopen the negotiations. The European Union publicly accused the U.S. of “delaying tactics aimed at killing” the protocol.
Fortunately, the U.S. lost its bid by 29-15 (with eight abstentions). The U.S. was opposed by all European and Latin American countries, except one–Cuba.
The protocol then passed (with the U.S. abstaining) and will go to the General Assembly this fall. Cuba’s “no” vote on the protocol was echoed by China, Egypt, Libya, Nigeria and Sudan, all identified year after year as countries that use torture.
How did the Bush administration end up in bed with Castro?
Presumably it has no desire to commit torture. But it also has no desire to let international inspectors (beyond the Red Cross) visit and interview “enemy combatants” detained in Guantanamo Bay, Cuba, and in military brigs.
Justice Department officials also argue that international inspections of state prisons would violate states’ rights and prisoners’ privacy rights.
Still, even if all these arguments had merit–does Washington really believe that prisoners want protection from torture inspectors?–none justifies trying to kill the protocol. It will apply only to countries that choose to join it. The U.S. can simply not join.
Castro may not want the embarrassment of being left out in the cold. But why should Washington try to weaken or kill a treaty that would not bind us and that promises to curb torture elsewhere?
The president’s public record on human rights is not uniformly negative.
Sometimes he does profess to care. At every opportunity, for example, he denounces human-rights violations by Cuba. Last year he condemned violations by the Taliban, and this year by Saddam Hussein.
But his overall record makes one wonder about even these selective stirrings of conscience. Is his real concern human rights or Cuban-American voters and popular support for war in Afghanistan and Iraq?
One source of skepticism is the administration’s evidently low priority for holding human-rights violators accountable, whether before international or national courts, in criminal or civil cases.
It opposes the International Criminal Court on the grounds that the court might conduct politically motivated prosecutions of Americans–even though the ICC statute requires that all cases involving Americans be referred to the U.S. for investigation and any resulting prosecution. The ICC can take the case back only if it later finds that the U.S. proceeding was a sham, designed to obstruct rather than to achieve justice.
Such a finding–by judges chosen mainly by our democratic allies–is exceedingly unlikely. Yet its mere possibility is enough for the administration to oppose an ICC that may offer the only hope for justice in many cases of crimes against humanity.
Not only has the president withdrawn the U.S. signature from the ICC treaty, but he has signed a bill that authorizes him to use military force against the ICC.
Meanwhile, his diplomats hold UN peacekeeping missions hostage to their demand that U.S. soldiers be immune from the ICC, and they pressure individual nations to sign agreements promising not to turn over U.S. soldiers to the ICC.
Washington’s weak commitment to accountability is not confined to the ICC.
When Indonesian courts recently returned “not guilty” verdicts against the first six military personnel tried for the 1999 atrocities in East Timor, despite strong evidence of guilt, the State Department said it was “disappointed” but hoped that future trials will go better.
There is little if any basis for such hope. Even so, according to a Western diplomat quoted in the South China Morning Post, Washington can be expected to oppose a special international tribunal for Indonesia, like those now prosecuting genocide in Rwanda and war crimes in Yugoslavia.
Civil suits for monetary damages in federal court are another way to hold human-rights violators accountable. Yet when victims recently sued ExxonMobil for murders and disappearances allegedly committed by Indonesian troops guarding the company’s oil wells and pipelines, the State Department asked the federal judge to dismiss the suit, arguing that it could prejudice U.S. relations with Indonesia.
And despite that military’s dismal human-rights record, the administration recently resumed security assistance to Indonesia. Already we send a lot of aid to Colombia’s military, whose continued collusion with paramilitary death squads is well-documented.
The scant regard for human rights is evident as well in our counterterrorism activities. Since Sept. 11, more than 1,000 foreign nationals have been detained in secret, some for months without access to lawyers or judges, and then deported after closed hearings for minor immigration offenses.
When a federal judge ruled that their immigration hearings must generally be public, the Justice Department got the Supreme Court to stay the order. When another federal judge ruled that their names, at least, must be made public, the government got that order, too, stayed pending appeal.
At least two U.S. citizens–Jose Padilla and Yasser Esam Hamdi–are being held incommunicado in military brigs in the U.S., without access to lawyers or courts, as “unlawful combatants.” So, too, are hundreds of foreign citizens at Guantanamo.
When the president last year announced his plan to authorize trials of suspected terrorists before military commissions, critics objected to this proposed shortcut of due process. Now, it seems, most of those being held will be lucky to get any kind of hearing at all.
The cumulative damage done by these and other administration assaults on human rights is worrisome. Many of our allies are rightly appalled; we are increasingly seen around the world as more likely to oppose than to defend human rights.
Our current policy of treating human rights as a flag of convenience undercuts the global moral credibility, not only of the land of the free, but of the broader cause of human rights.
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