Torture and International Law_ Legal Perspectives_Lecture 3

1. Lecture 3:Torture and International Law
Dr. Michelle Cowley
Applied Social Sciences
University of Southampton

2.  One seminar every two weeks
 Group 1: …
 Group 2: …
 Additional reference to today’s lecture
Smith, R. K. M. (2004). Textbook on
International Law. Oxford: Oxford University
Press Ch.4 and Ch.14

3.  The Universal Declaration of Human Rights
 The Geneva Convention
 Defending Rights after 9/11
 Liberty vs Security: Guantanamo Bay
 Evaluating Contemporary Perspectives on
Torture and International Law
 Legal and Psychological Perspectives

4. Articles 1, 3 and 5
Smith, R. K. M. (2004) Textbook on International
Human Rights [SOCI3062 Box file]

5. The content of the declaration
‘All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.’
Article 1
‘Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. Furthermore, no
distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to
which a person belongs, whether it be independent, trust, non-
self-governing or under any other limitation of sovereignty.’
Article 2
See www.ohchr.org for the Office of the UN High Commissioner of Human Rights

6.  UN Convention Against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment 1984
 Committee Against Torture (implementation thereof)
‘No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment’
Article 5
See www.ohchr.org for the Office of the UN High Commissioner of Human Rights

7.  A Declaration of the General Assembly only
has a strong moral force, it is not legally
binding
 Derogations
 National law is a priority
 Hierarchy of rights
 Human rights are indivisible

8. Guidelines for theTreatment of Prisoners ofWar
See www.icrc.int The International Committee of the Red Cross (Humanitarian Law)

9.  The U.S have signed up to the Geneva Convention guidelines
for the treatment of prisoners of war (PoWs)
 PoWs are entitled to the following:
 No degrading public displays of prisoners
 Allowed to congregate with other prisoners
 To elect a representative from their group
 To labour for pay
 Cooking their own food
 Sending letters to their families
 N.B. to withhold information beyond their name, rank and serial
number
 Posting of these rights in languages understood by the prisoners.
See www.icrc.int The International Committee of the Red Cross (Humanitarian Law)

10. Liberty vs Security: Guantanamo Bay

11.  Where is Guantanamo?
 Who is being detained there?
 15 years old (youngest detainee)
 Most are in their early 20s
 Saudi origin (25% and largest percentage)
 Al-Queda
 Taliban
 What does the detention centre look like?
 Why Cuba? Anyone?
See Chapter 4 of Leone & Arrig (2003)

12.  Argument 1: It does not make sense to release potential terrorists, or
detainees who have been shown to be adherents of movements that
directly or indirectly support the 9/11 attacks
 Argument 2: Even if there is not enough evidence to convict them of a
crime, a ‘strong suspician’ will suffice for detention pending trial
 Argument 3: Prevention of a future action is more sensible than the
conviction of past action in an ongoing military situation
 The objective: To gather intelligence about a network and its future
targets
 Is anticipatory detention legal?
See Chapter 4 of Leone & Arrig (2003)

13. No degrading public displays of
prisoners
✔ (U.S. claim it is for the detainees’
privacy)
Allowed to congregate with other
prisoners
✕ (allowed to speak through the wire
mesh in the cell, but movement of
prisoners)
To elect a representative from
their group
✕
To labour for pay ✕
Cooking their own food ✕ (Halal food is prepared)
Sending letters to their families ✔
N.B. to withhold information
beyond their name, rank and
serial number
✕ (the purpose of indefinite detention
is to gather intelligence)
Posting of these rights in
languages understood by the
prisoners.
✕ (The Red Cross have a semi-
permanent presence at G. Bay)
Table 1: A comparison between the Geneva Convention
Guidelines for PoWs and Guantanamo Bay conditions
(adapted from Lelyveld, 2003)
*Islam prayer and ministry is allowed

14. Legal and psychological perspectives

15.  Prison guards from Georgia (G. Bay no worse than high security
prisons in the U.S.) …
 Can you think of the main legal difference between prisoners in
Georgia and detainees in G. Bay?
 Not knowing when you will be free… (Nov 13th
2001 Military
Order signed by George W. Bush)
 Geneva convention agrees until conflict ends (defining the war
against terrorism as a conflict may be problematic)
 ‘Physical vs Mental Anguish’ (Christmas of 1944 at Auschwitz,
Frankl, 1984)

16.  ‘Unlawful enemy combatant’ (One size fits all)
 ‘enemy combatant’ (Long Island Nazi Supreme Court term, 1942)
 Right to counsel
 Right to speedy trial
 The secrecy about the procedures of interrogation (Amnesty
International call)
 Detainees do not have PoW status and their indefinite detention may be
interpreted as inhumane
 But, the U.S. have a case, given the unusual threat and the Geneva
Convention has not spelled out provisions such a threat to international
security (Smith, 2004).

17.  Is there the possibility that some detainees are innocent?
 What were the methods used to obtain detainees (authenticity of
intelligence)
 Were investigations carried out before the detainees were labelled guilty?
 Article 8 of the Geneva Convention on PoWs tells ICRC delegates to consider
the imperative necessities of security for the state wherein they carry out
their duties.
 But is G. Bay preventing further attacks?
 Is the law of war about civil liberties one of restraining human beastliness
(Roberts, 2003)?

18. ‘…is the toughness of the detention
regime a product of anything other
than the legitimate security
concerns’?
(Lelyveld, 2003)

19.  If the aim is to obtain intelligence what are the methods used
(unlikely voluntary)?
 How long does it make sense to treat all detainees at G. Bay as
potential suicide bombers?
 How structured is the environment?
 Trait Theory (e.g., Eysenck,1967; Costa & McCrae, 1999)
 Situationist (e.g., Mischel, 1968)
 Interactionist (e.g., Bandura, 1999)
 The long-term perspective will need to address the
psychological consequences of G. Bay procedure…
See Gross Ch.4

20.  Solitary confinement: Contrary to Article 7 of the International
Covenant on Civil and Political Rights
 Sufficiently severe mental suffering: contrary to Article 3 of the
European Convention
 ‘No exceptional circumstances whatsoever,…may be invoked as
a justification for torture (Art. 2(2) UN Convention on Torture).
 But infringement of human dignity does not necessarily pertain
to physical injury
 But inhuman treatment without physical injury may not
necessarily constitute torture…
 Seminar we will be working with these issues…