The Unjustifiable Practice of Torture in the War on Terror: The Protection of National Security at the Cost of Individuals’ Human Rights

The Unjustifiable Practice of Torture in the War on Terror: The Protection of National Security at the Cost of Individuals’ Human Rights.
Author: Shauna McKee
Queen’s University, Belfast

Abstract

Since World War II, the right of any individual to not be tortured has been a jus cogen in international law. Unfortunately, this jus cogen has been side-lined by various countries in their practice of torture with the United States of America being the latest country to demonstrate disobedience of this peremptory norm in the aftermath of September 11^th 2001. In prioritising national security, America has receded from its mantle as an international leader in human rights and revealed itself to be an advocate for torture.

This dissertation aims to identify the unjustifiability of America’s practice of torture during the War on Terror with a focus on the Bush administration who chose to prioritise national security over the absolute right of scores of individuals. To establish how torture is legally defined, this dissertation will explore the European Convention on Human Rights and its resulting jurisprudence prior to critically analysing how torture has been deemed justifiable and subsequently unjustifiable in the context of the War on Terror. After determining unjustifiability, the issue of accountability will be examined regarding those responsible for America’s utilization of torture.

This dissertation concludes that the unjustifiability of America’s actions cannot be ignored and action is necessary to prevent reoccurrence of the Bush administration’s gross mistakes. Such action includes reforming U.S. military training, supporting the International Criminal Court’s investigation into Afghanistan or further promotion of the ‘truth’ of America’s torture practice to the wider public to strengthen traction for accountability.

Introduction

‘Torture is an instrument of terror and not of justice’ – Canadian Supreme Court. [1]

On September 11^th 2001, Al-Qaeda instigated the largest terrorist attacks on U.S. soil with 2,993 fatalities. As a result, national security has received primary consideration regarding foreign and domestic policy relating to counter-terrorism; the Bush administration was determined to prevent a reoccurrence of 9/11. However, resolve in protecting national security at all costs blinded the state so that the prohibition on torture was regularly breached.

 In December 2014 the Senate Intelligence Committee released a damning report that exposed the CIA’s torturous interrogation methods during the Bush administration. Since its publication there has been an outcry at the CIA’s practice of torture, its authorization by leading government officials and the resulting impunity; it is disrespectful to the essence of the prohibition on torture as a jus cogen in international law let alone the domestic prohibitions within the United States of America. As well as the attempts by officials and academics alike to justify the practice of torture following 9/11, the human rights of the detainees suffering under enhanced interrogations and extraordinary renditions are diminished and overridden by the need to protect national security.

This dissertation seeks to highlight the unjustifiable utilization of torture in the War on Terror for the sake of national security and at the cost of an individual’s human rights. Whilst it has been nine years since George W. Bush’s presidency ended, his administration’s authorization of torture on detainees remains a dark part of his presidential legacy that should not be forgotten. Particularly now when President Donald Trump has appointed Gina Haspel as the new director of the CIA despite her previous criteria in running a ‘black site’ in Thailand,  there is an unease that America has not learnt from the mistakes of Bush and his associates. Therefore, as this dissertation sets out to do, it is necessary to acknowledge the unjustifiability of the practice of torture during this period known as the War on Terror in order to prevent reoccurrence.

Prior to critiquing the practice of torture, it is essential to understand how it is perceived by international law; therefore, chapter one will focus on how torture is legally defined. To promote clarity, the chapter will focus on the European Convention on Human Rights and its subsequent case law. The three main definitional elements of torture will be explored with reference to case law heard in the European Court of Human Rights; these three elements are severity, purpose and the prohibition’s absolute nature. The purpose of this chapter is to highlight the jus cogen status attached to the prohibition on torture in a portion of international law that resonates worldwide through various treaties and legal mechanisms. In analysing the unjustifiability of the practice of torture by the Bush administration it is crucial to understand how the law perceives torture to begin with.

Chapter two will focus on the central aspect of this dissertation; the unjustifiability of torture in the War on Terror. After first outlining the domestic and international measures banning torture that are applicable to America, the justification for the use of torture in the War on Terror will be critically analysed. The primary focus of the justification will be the ‘ticking time bomb’ scenario in association with the necessity defence. Countering this, the unjustifiability of practicing torture will be critically considered through a legal and moral lens. In doing so, torture’s status as a crime against humanity [2] resonates strongly even in the face of America’s established justifications for its practice.

In chapter three the focal issue will be accountability in regards to the Bush administration’s approval of torture. Past attempts at holding officials accountable will be considered as well as the potential for future endeavours in pursuing accountability. Subsequently, the proposals of an extra-legal action model and torture warrants system that bring accountability into state practice and the judiciary respectively will be critically considered.

This dissertation is primarily a socio-legal analysis based on desktop research albeit chapter one focuses on a doctrinal analysis of Article 3 of the European Convention on Human Rights and the resulting European Court of Human Rights case law. In its analysis, a range of primary and secondary sources have been considered and used to aid this dissertation. Over the course of the three chapters, a collection of cases have been evaluated from a number of jurisprudences such as, for example, the United States of America and the European Court of Human Rights in Strasbourg in a demonstration of how torture has been approached by the judicial system. The inclusion of certain treaties and legislation that deal with the prohibition of torture have also been examined, such as the Universal Declaration of Human Rights 1948 and the United States of America Constitution, in a bid to emphasise how the prohibition on torture is enforced both internationally and domestically. This dissertation has also considered a range of academic opinion in the form of literature and articles on the issue of torture’s justifiability and its underhand practice during the War on Terror.

Chapter One – Legal Development in Defining Torture

‘…it is precisely in times of crisis that absolute values must remain uncompromised’ – European Court of Human Rights. [3]

On the subject of torture, humanity is at its most hypocritical. Whilst universally condemned no regime will admit to its practice, a factor in this being differing opinions on what actually constitutes torture. Since the creation of the Universal Declaration of Human Rights in 1948, defining torture has been a source of growing debate albeit there is no shortage of materials to help establish its meaning. In Article 1.1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 torture is specified to entail:

‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining for 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 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 lawful sanction.’ [4]

What is clear from this classification is that central to defining torture are the elements of severity and purpose. These, coupled with the absolute nature of torture’s ban, have proved to be key features throughout both case law and variant definitions of torture and will subsequently be discussed in this chapter. I will first discuss the element of severity which has proved to be subjective and fact specific from case-to-case; the threshold has advanced since the landmark yet controversial ruling in Ireland v United Kingdom. [5] Second, the purposive element will be analysed with interrogation emerging as the common purpose behind torture. Finally, I will focus on the absolutism of the ban on torture and the difficulty it has encountered when national security is at risk.  In seeking clarity and precision, I will focus the discussion on case law arising from alleged breaches of Article 3 of the European Convention on Human Rights [6] as decided by the European Court on Human Rights. [7]

1. Severity

It was not until 1969 that the European Commission of Human Rights [8] was confronted with an inter-state application focusing on Article 3. In the Greek case [9], the Commission presented a formula of component parts regarding torture in an application that claimed that Greece’s security forces had been systematically abusing detainees. Here, the Court deemed torture to be purposive inhuman and degrading treatment, however not all inhuman or degrading treatment will be torture [10]; it is apparent that the element of severity will be the decisive component between both torture and ill-treatment. 

The landmark Ireland v United Kingdom [11] case began to flesh out the Court’s understanding of torture; it concerned whether the ‘five techniques’ [12] constituted a breach of Article 3 of the Convention. Controversially, the Court concluded that these techniques ‘undoubtedly amounted to inhuman and degrading treatment’ [13] but not torture; any treatment complained of must ‘attain a minimum level of severity’ [14] if it is to even be contrary to Article 3. From the onset, the Commission withheld setting a ‘specific severity threshold’ to measure acts that would constitute torture. [15] Rather, the severity analysed by the courts is circumstantial and relative in that it is examined subjectively in regards to the particular recipient of the treatment. [16] This conditional nature of severity is exemplified in the judgment of Wijeyasiriwandene v Inspector of Police, Kandy [17] wherein the punching of a 16 year old athlete by a police officer was ruled to be a justifiable, albeit excessive, use of force. M.D.H. Fernando J explained that if such force had been directed at a frail elderly woman it would be viewed cruel by the judiciary and perhaps qualify as inhuman treatment.[18]

As exhibited in Donnelly and others v United Kingdom [19] it is extremely difficult to prove that a state is systematically failing to comply with Convention obligations given there is a high threshold of hard evidence to satisfy. [20] Disgracefully, the treatment the applicants in Ireland [21] were subjected to was not a new development in the British military’s tactics. In fact, as the Parker Report notes, the British army had used the same interrogation techniques in previous campaigns in Kenya, Palestine, Malaya and particularly Cyprus wherein Greece similarly raised allegations of Article 3 violations against the United Kingdom in regards to the treatment of detainees by British forces.[22] Brian Simpson has considered Ireland [23] to be the peak in the U.K.’s ‘lamentable’ failure of the Convention and indeed it was regrettably a lost opportunity by the Court to condemn and make an example of the U.K. for similar states to evaluate, and perhaps reform, military tactics. [24]

Emerging into the 21^st Century, it appears that the Court has come to regret its previous decision in Ireland [25] with its judgment in Selmouni v France [26] that involved the applicant claiming he had been subjected to torture in a breach of his Article 3 rights during three days of custody following arrest by French police.[27] The Court took into consideration that the Convention is a ‘living instrument which… must be interpreted in the light of present day conditions’; a principle outlined in Tyrer v United Kingdom [28] which ruled corporal punishment to be degrading treatment in breach of Article 3. [29] Utilizing this principle, the Court determined that certain acts which initially were not considered to be torture but rather inhuman and degrading treatment ‘could be classified differently in the future’. [30] This formula of severity and purpose should be ‘elastic and capable of evolving interpretation overtime’.[31] Given the continuous requests that the Court revise its judgment in Ireland [32], it would be intriguing to see if this is applicable to this case’s circumstances.[33]

1. Purpose

Throughout history, the purpose of torture was undeniably to inflict punishment and act as a deterrent regarding certain criminal acts.  Whilst the Canadian Supreme Court still associates torture primarily with punishment [34], in the 21^st Century it is more predominantly considered to serve as an interrogation technique. [35] Despite a collection of legislative frameworks supposedly monitoring the prohibition on torture, according to Juan. E. Méndez they have had minimal impact in reducing the practice of torture during interrogations. [36] A variety of factors have fuelled the exercise of torture in interrogations. For example, as Méndez has explained, the assumption that coercion is necessary as means to obtain vital information is an ideal still upheld within society. [37] Despite popular belief it is effective, evidence obtained through torture, as discussed in Othman (Abu Qatada) v United Kingdom [38], is incredibly unreliable and unfair [39]; in the majority of situations victims will resort to admitting anything as a means of ending their torturous treatment. As stated in Gäfgen v Germany [40], any evidence gathered through a breach of Article 3 ‘should never be relied on as proof of the victim’s guilt, irrespective of its probative value’ [41]; the court’s prohibition of utilizing evidence obtained through torture is fundamental. [42]

Returning to Ireland [43], whilst the Court acknowledged severity the ‘purposive element’ [44] was overlooked despite being previously established in the Greek case [45]; in this case, the Commission outlined that torture was essentially ‘inhuman treatment, which has a purpose’ such as punishment or obtaining information.[46] It can be assumed from this definition that the purposive element of torture is prime and solely considered. Intriguingly in Ireland [47] the Commission reached a polarising decision to that of the Court. As Judge Zekia iterates, the Commission reached ‘a unanimous conclusion’ that the ‘five techniques’ amounted to a breach of Article 3 of the Convention and were considered as torture.[48] For the Commission the decisive factor was purpose;

‘The Commission sees in them a modern system of torture falling into the same category as those systems which have been applied in previous times as a means of obtaining information and confessions’. [49]

This emphasis on purpose is endorsed by Manfred Nowak as a decisive factor along with the powerlessness of the victim ‘rather than the intensity of the pain or suffering inflicted’ [50]; the purposive element provides accuracy in the ‘account of the phenomenon of torture’. [51] In recent cases, the Court has demonstrated a consistency in identifying severity and purpose collectively when determining whether inhuman treatment amounts to torture. For example, in Menesheva v Russia [52] where the applicant brought proceedings against the police for ill-treatment by way of physical violence, the Court held that having regard to its purpose and severity, the ill-treatment at issue ‘amounts to torture’. [53] Similarly in Mikheyev v Russia [54] the ill-treatment the applicant faced in police custody was concluded to be torture by the Court in view of its ‘severity and purpose’. [55]

3. Absolute Nature

Judge Cançado Trindate outlined that “torture is absolutely prohibited in all its forms” [56], reinforcing what a variety of domestic and international legislation has codified regarding the nature of the ban on torture. For example, in the U.K. under section 134 of the Criminal Justice Act 1988 it is an offence for any public official to ‘intentionally inflict severe pain or suffering on another in the performance…of his official duties’. [57] Known as a peremptory norm, this absolute ban is a fundamental principle of international law from which there is no derogation. Jeremy Waldron emphasises that the prohibition of torture is not a mere rule but rather an underpinning feature of the legal system.[58] This status has been supported by the International Court of Justice who view the prohibition of torture as part of customary international law [59] as exhibited in, for example, Article 3 of the Convention.

During the Convention’s drafting there existed no controversy in relation to the absolute nature of Article 3, unsurprisingly so in the wake of the inhuman atrocities committed during World War II. In the Nuremberg trials that followed World War II, it was acknowledged that there could be criminal liability under international law for certain crimes. [60] Article 15(2) of the Convention which prohibits any derogation cements its absolute nature in any circumstances including times of war and when national security is threatened; the latter sparking considerable debate as exhibited in Chahal v United Kingdom.[61]

In Chahal [62] the applicant was under imminent threat of deportation to India from the U.K. for reasons of national security under section 3(5) Immigration Act 1971. Following Soering v United Kingdom [63] it emerged that Convention states are obligated to consider the ramifications of extradition of an individual to a third country, particularly where treatment will occur that breaches the Convention; therefore there existed a strong precedence against extradition when there is the risk of a breach of Article 3. Consequently in Chahal [64], the court stressed the absolute nature of Article 3 in rejection of the U.K. Government’s suggestion that when national security is at risk there should be an implied limitation to Article 3 to allow derogation. Henceforth the conduct of the victim and the nature of the alleged offence [65] committed are irrelevant under the scope of Article 3, a fact that various governments struggle to accept in a modern society rife with terrorism. Yet, as the court emphasises in Aksoy v Turkey [66], in such circumstances torture is prohibited in ‘absolute terms’ [67]; there is no room for derogation.

Judge Myjer in Saadi v Italy [68], which reinforced Chahal, [69] emphasised the absolute nature of torture’s prohibition when national security is at risk. In protecting national security it is not a ‘free-for-all’ when it comes to constructing and implementing counter-terrorism measures; there are limitations that need to adhere to overarching rights and principles such as the prohibition on torture. For Judge Myjer, upholding human rights such as Article 3 is ‘first and foremost a matter of upholding our values, even with regard to those who seek to destroy them’; an absolute nature has no room for states to make exceptions where it suits, even in matters regarding national security.

In relation to cases involving a potential breach of Article 3 of the Convention, states cannot rely upon the doctrine of the margin of appreciation for support. Fundamentally, this is a means to provide ‘room for manoeuvre’ by the Court to State authorities in fulfilling Convention obligations.[70] However, it has never been invoked by the Court in regards to cases alleging breaches of Article 3, albeit Judge O’Donoghue implied that the Court applied the doctrine in Ireland [71] due to ‘fraught internal conflict in Northern Ireland’ at the time. [72] According to Judge O’Donoghue the use of the doctrine;

 ‘in favour of the respondent Government has been treated by the Court, in my opinion, as a blanket exculpation for many actions taken which cannot be reconciled with observance of the obligations imposed by the Convention’. [73]

According to Antony Cullen, this margin illuminates the different reasoning between the Court and the Commission.[74] If the Court were to employ the doctrine of the margin of appreciation in Article 3 cases there would be a notable ‘variance with the absolute and universalist spirit’ of the provision; consequently, its practice would generally undermine the unqualified nature of the prohibition on torture. [75]

4. Summary

This chapter discussed how the Court’s jurisprudence regarding Article 3 has cultivated in two core factors in defining torture; it is purposive treatment of a ‘minimum level of severity’ that encompasses either ‘actual bodily injury or intense physical or mental suffering’.[76] Through Strasbourg’s jurisprudence, it has become apparent that Convention states have difficulty in accepting this unconditional element of the prohibition of torture particularly when national security is involved as was exhibited in Chahal [77]; however, the Convention prevails against the appeals of State authorities.

In 2000, the Court finally spoke out to condemn the treatment by the U.K. to detainees in Northern Ireland; however, the decision in Ireland [78] remains. It is this case’s judgment that was used by the George W. Bush administration as an authority for their proposal that ‘certain interrogation practices would not contravene the ban on torture in international law’.[79] This administration’s malpractice in justifying their use of torture during the War on Terror will feature in the next chapter.

Chapter Two – Is Torture Justified in the War on Terror?

‘…the use of torture compromises that which most distinguishes us from our enemies, our belief that all people, even captured enemies, possess basic human rights’ – John McCain. [80]

Since the War on Terror commenced on September 11^th 2001, the definition of torture discussed in Chapter 1 has been under threat. Governments have attempted to constrict its legal meaning to provide leeway for torturous interrogational methods [81] whilst simultaneously seeking to diminish its absolute nature in order to create an exception for terrorists who endanger national security. This chapter will focus on whether torture can be justified in protecting national security in the War on Terror or whether it is unjustifiable given the detriment it causes for an individual’s human rights.

               First, I will discuss how governments have responded to the War on Terror regarding counter-terrorism policies that include the practice of torture; my focal point will be on the United States of America albeit European states’ complicity will be acknowledged. Then I will critically analyse how justifiable it is to use torture in these circumstances which threaten national security. I will focus primarily on the ‘ticking time bomb’ scenario along with the necessity defence. Finally, I will discuss the unjustifiability of torture from a legal and moral perspective.

1. Background

Given the European Convention on Human Rights [82] is not applicable in America, there are domestic law measures that uphold the ban on torture which were in place prior to September 11^th 2001. This includes the 8^th Amendment to the United States Constitution which states;

‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’.

Whilst not directly mentioning torture, the US Supreme court has confirmed that torture falls under its scope. [83] The War Crimes Act 1996 extends to international law and criminalises breaches of the Geneva Conventions; ironically this legislation’s purpose was to prosecute North Vietnamese soldiers who had tortured U.S. soldiers during the Vietnam War.  This includes Article 3(1) (a) of the Geneva Conventions 1949 that outlined the prohibition of;

‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’.

The U.S. is also a party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 as well as being a drafter of the Universal Declaration of Human Rights 1948 which banned all forms of torture.[84] However in the wake of destruction caused by Al-Qaeda on 9/11 the authority of such legislative measures faded for the government when national security was imminently at risk.

               At one point America appeared to be the international figurehead in human rights yet from the outset of 9/11, the Bush administration experienced repression by international law’s restrictions. Richard Clarke [85] quoted Bush to have declared immediately after 9/11; ‘I don’t care what the international lawyers say. We are going to kick some ass.’ [86] With a dismissive attitude towards international law, in August 2002 the ‘torture memos’ were signed and drafted by Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General John Yoo that advised the CIA and the U.S. Department of Defence about enhanced interrogation techniques that, despite being widely regarded as torture [87], could be legal under an expansive interpretation of Bush’s role as Commander-in- Chief [88] in the War on Terror. As a result, detainees held in Guantanamo Bay and CIA black-sites [89] were subjected to enhanced interrogation which involved physical and psychological techniques similarly practiced by U.K. forces in the case Ireland v UK [90] and by Israeli security forces [91] in the 1990s.

The Bush Administration was notably aided by allies in Europe in the fight against terrorism. For example, the U.K.’s Special Forces have aided the CIA in renditions and secret detentions as well as adopting a ‘good cop bad cop’ approach in regards to interrogating detainees. [92] Countries such as Poland [93], Italy [94] and Romania [95] have also been complicit in the CIA’s extraordinary renditions as discovered by the European Court of Human Rights [96] in various cases. The Convention’s obligations that bind these European states make their association with the fight against terror by means of torture all the more shocking.

The emphasis on interrogational methods contrasts to past conflicts because the War on Terror relies heavily on intelligence rather than ‘brute force’.[97] For example, Syrian-born Canadian Maher Arar was the subject of a U.S. extraordinary rendition in September 2002. For 12 months he was detained and tortured in Syria before Canada diplomatically intervened; upon his release, the Syrian Ambassador in Washington stated there were no links between Arar and terrorism. Despite pursing legal action against the officials involved, in Arar v Ashcroft [98] Judge David G. Trager prioritised national security over Arar’s human rights;

‘On the other hand, a judge who declares on his or her own Article III authority that the policy of extraordinary rendition is under all circumstances unconstitutional must acknowledge that such a ruling can have the most serious consequences to our foreign relations or national security or both’. [99]

The prioritisation of national security over human rights as exhibited in this single example has proved to be a consistent theme throughout the War on Terror with the illicit practice of torture. Yet perhaps what is most shocking is not that torture was used ‘but that it was being defended’.[100]

2. Justification

With terrorism igniting a ‘moral panic’ [101] in the societies of America and her allies, it was not difficult to make the concept of an absolute prohibition on torture when national security was at risk look preposterous.[102] In an internal struggle of national security against human rights, it appeared that the former was receiving more support. After all, as Henry Shue iterates, security is necessary in order to enjoy one’s rights:

‘Without security or subsistence one is helpless… Therefore, security and subsistence must be socially guaranteed, if any rights are to be enjoyed’. [103]

To protect security, the Bush administration determined that certain detainees must be deprived of their rights granted by the Geneva Conventions:

‘Under Article 4 of the Geneva Convention, however, Taliban detainees are not entitled to prisoner of war status…Al Qaeda is an international terrorist group…its members…are not entitled to POW status under the treaty.’[104]

Denying these detainees their rights is a subtle yet effective method of dehumanizing the supposed ‘enemy’; of creating an ‘us versus them’ approach that the Bush administration promoted from the start; ‘You are either with us or you are against us in the fight against terror’.[105] In creating a separate class for these detainees, by ‘othering’ them, there is an ease with which the government and public can regard them indifferently in a state of Nelsonian blindness;

‘We live in times where people, in [the USA] and in so many other supposedly “civilised” nations, are so filled with primal fear that they look on with apparent indifference at the possibility of extreme maltreatment of their presumable enemies – indifference, indeed, at the evidence and televised images of this sort of maltreatment’.[106]

This state of ‘Nelsonian blindness’ [107] encapsulated America and Western Europe in the aftermath of 9/11. Whilst it is difficult to ever consider torture with ease, this indifference enables a blind eye to be turned towards the practice of torture and to focus on the need to prioritise national security; a significant portion of justifiability for this use of torture is afforded by states in this manner.

               Alan Dershowitz purported that torture may be a justifiable method by the Bush administration given its purpose to extract information that could lead to the immediate saving of lives and national security [108]; this is an application of the ‘ticking time bomb’ scenario [109] which states have saturated their counter-terrorism policies in. It is in this specific scenario that Jeremy Bentham believed torture should be allowed as the ‘lesser of two evils’ for the purpose of gathering intelligence; the individual’s interests are trumped by those of the public.[110] However, with consistent intelligence gathering by means of torture, the reliance on the ‘ticking time bomb’ case is fundamentally flawed. Most terrorist experts admit that the supposed scenario rarely occurs in reality [111] yet the Bush administration appeared to visualise the War on Terror as an endless ‘ticking time bomb’; this hypothetical situation turned into a potential daily occurrence for state officials to protect national security.

               In justifying the utilization of torture in this situation, governments may invoke the necessity defence:

‘If torture provides the last remaining chance to save lives in imminent peril, the necessity defense should be available to justify the interrogators’ conduct’.[112]

This defence was mentioned in the ‘Torture Memos’ as a justification for US interrogation methods on Taliban and al-Qaeda suspect detainees;

‘It appears to us that under the current circumstances the necessity defense could be successfully maintained…Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which would take hundreds or thousands of lives’. [113]

The Bush administration applied this defence to, for example, extraordinary renditions as demonstrated by the case El-Masri v The Former Yugoslav Republic of Macedonia [114] wherein CIA agents transferred El-Masri to a black-site in Afghanistan where he was tortured, as the Court discovered, for four months. It is estimated that the CIA, working with other intelligence agencies, captured 3000 people between 2001 and 2005 [115] for the sake of necessity; yet, like El-Masri, many detainees were found to be innocent. This risk of innocence, however, is necessary and ‘the lesser of two evils’ for state officials when faced with an emergency situation that threatens the lives of hundreds of civilians;

‘The interests of the society may sometimes be so deeply involved as to make it right to punish an innocent man ‘that the whole nation perish not’’.[116]

The Israeli Supreme Court authorised the retrospective application of the necessity defence to Israel Security Agency interrogators who utilised physical interrogation methods in a ‘ticking time bomb’ scenario [117]; albeit this was limited to certain circumstances and the defence is not guaranteed to succeed. For the Bush Administration to rely on necessity goes against the principle of the defence;

‘The defense of necessity does not define a code of primary normative behaviour. Necessity is certainly not a basis for establishing a broad detailed code of behaviour such as how one should go about conducting intelligence interrogations in security matters…’.[118]

Likewise in English common law whilst the necessity defence is acknowledged its application is rarely successful [119] albeit case law is absent on the availability of the defence regarding the practice of torture concerning terrorists.[120] Similarly, the International Criminal Court lacks any such jurisprudence and if it were to uphold the defence in such circumstances it would be by an ‘extremely narrow margin’ and only in an ‘excusatory form’ as opposed to a justification.[121]

‘If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job’.[122]

According to Michael Walzer obtaining ‘dirty hands’ is inevitable in politics; one can do the right thing in a certain situation for the national interest even if it results in the loss of one’s moral innocence. [123] Political leaders, such as Bush and former U.K. Prime Minister Tony Blair, hold a deep sense of responsibility for national interests and security that spurs them to go beyond their moral, and legal, duties. [124] It is a political necessity as opposed to a moral necessity that drives such leaders to, for example, practice torture in circumstances such as ‘the War on Terror’. This pertains to the Machiavelli perspective that political necessity, although not always absolute, can override moral norms. [125] However for Walzer what is immoral is more so the denial of ‘dirty hands’; accountability [126] is particularly essential to permit the immoral act by means of political necessity:

‘If he were a moral man and nothing else, his hands would not be dirty; if he were a politician and nothing else, he would pretend that they were clean’. [127]

3. Unjustifiable

In El-Masri [128] the Court became the first to deem the CIA’s rendition methods as amounting to torture; any attempts to justify such techniques are irrelevant in Strasbourg as there is an equal amount of rationale to dissuade any prioritisation of national security over human rights. The most blatant reason is the prohibition on torture’s place in law. Although its role is heavily debated, there is an undeniable influence from morality on the law and a clear consensus between law and ethics that torture is wrong.[129]  As Lord Coleridge CJ stated in R v Dudley and Stephens [130];

‘Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence…’[131]

In torture debates there are not claims that it is a good practice; at the most, there are claims that torture is the ‘lesser of two evils’ henceforth acknowledging its immoral evil nature. In diminishing an individual’s human dignity and autonomy, the immorality of torture creates a challenge from the onset for governments to justify its practice. Yet, torture is visualised by states as morally permissible given its status as the lesser of two evils in a ticking time bomb scenario. However, to claim a moral right to torture detainees in order to ‘extract military necessary information’ that upholds national security enforces a precedent that others may use.[132] For example states such as Egypt, China and Pakistan have followed America in invoking the War on Terror as a justifiable circumstance to abuse prisoners and Muslim minorities [133]; there is a danger of slippage.

               State ignorance of the illegality of torture also proves to be detrimental to the ‘Rule of Law’ which, in part, promotes that nobody is above the law. As Jeremy Waldron highlights the rule of law does not ‘favour freedom or unregulated discretion for the government’ but rather institutions must ‘bend over backwards’ to ensure legality and the rule of law are ‘honoured’.[134] Instead, institutions have tarnished it by working above the legal system, an example being Bush’s position as Commander-in-Chief that deemed international legislative restriction on torture practice to be unconstitutional given its constraint on Bush’s power in this role.[135] Blair has insisted the U.K. abides by the rule of law; ‘All I know is that we should keep within the law at all times…”[136] However, whilst more subtle than the U.S., this is not the case. For example, the British government adopted measures [137] to ensure either key aspects of cases were heard in secret or that cases were ruled completely non-justiciable.[138] The lengths governments go to conceal the practice of torture [139] and the wide consensus in opposition to it is an indication that it is an unjustifiable practice.

               In proclaiming that torture is justifiable for protecting national security, state bodies are contradicting the volume of case law that has emerged since the War on Terror began. In Hamdan v Rumsfeld [140] the U.S. Supreme Court essentially overruled the Torture Memos in stating that Article 3 of the Geneva Conventions was applicable to all detainees in the War on Terror.[141] In Strasbourg, the Court has openly condemned U.S. rendition practice as first witnessed in El-Masri [142] in a ‘comprehensive condemnation of the worst aspects’ of CIA tactics that were endorsed by allying governments.[143] Essentially the practice of torture, taking into consideration the vast body of case law discussed in Chapter 1, is unjustifiable due to its position as a jus cogen in law;

‘Thus, torture mocks the law, using punishment to gather evidence to justify the punishment already inflicted, rather than using evidence to justify punishment’.[144]

               In torturing ‘potential’ terror suspects there is blatant unjustifiability in the lack of certainty regarding their guilt. In various cases, the suspect is completely innocent as exemplified in Al-Nashiri v Poland [145], wherein the applicant was the victim of a joint US-Polish rendition, and undeniably this is a ‘formidable moral barrier’ to torture practice.[146] Cesare Beccaria identifies this as a fundamental flaw central to attaining confession by means of torture;

‘If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent, whose crime has not been proved’.[147]

Contemporarily it is common to divert focus on the act of torture to its consequences; the victim is treated as a means rather than an end. The victim’s humanity is undermined and their autonomy is disrespected; in Kantianism torture is extremely wrong in how it utilises an individual ‘as a mere means to purposes’ they do not reasonably share.[148] The practice of torture is self-incriminating and forces an individual in collusion with the torturer against themselves[149] in a manner that violates their right to the presumption of innocence. [150]

               This uncertainty of guilt directly links to the questionable efficiency of torture. In the War on Terror the primary purpose of practicing torture is to illicit valuable intelligence from the suspect; however such information can be ‘misled’ when the suspect is ‘innocent or holds a grudge’. [151] For example, only 0.06% of the 5000 detainees captured between 9/11 and the publication of Abu Ghraib photographs were charged; an incredibly low success rate to support the efficiency of torture.[152] In fact, there are suggestions by U.S. commanders that treating detainees with dignity is more effective in gathering intelligence [153] yet, proof of this method is also elusive. However, Richard Posner highlights that torture’s inefficiency should not be dismissed as absolute:

‘…it is hard to believe that it is always and everywhere ineffectual; if it were, we would not have to spend so much time debating it’.[154]

The common practice and debate of torture, therefore, provides opposition to the suggestion that its practice is ineffective.

4. Summary

This chapter focused on the debate as to whether torture can be justified in the War on Terror. In arguments justifying its practice the ‘ticking time bomb’ scenario is central and supported by the necessity defence, as promoted by America, as well as a trend of Nelsonian blindness and the idea that immoral actions are inevitable in politics; the protection of national security is vital. However, there is a strong moral and legal argument to counter the justifiability of torture given its jus cogens position in international law and its detrimental impact on the human rights of those affected by torture.

               Without a doubt, torture is a crime against humanity that has had devastating consequences for individuals who have suffered under it; such infliction of trauma must be deterred from repeated future use. An effective method of deterrence is establishing accountability and promoting prosecution of those culpable. The struggle for accountability of the Bush administration’s utilization of torture will be the primary focus in the next chapter.

Chapter Three: Accountability

‘This long overdue message that no one is above the law is particularly important now, as the Trump administration…embraces the war with no plan in sight’ – Katherine Gallagher.[155]

Following his inauguration, President Barack Obama issued executive orders to ensure interrogations occurred lawfully [156] and to close Guantanamo Bay within the year.[157] However, as opposed to law passed by Congress, executive orders can be overturned by successive presidents; they lack the weight of change that accompanies the law. By choosing to merely renounce further practice of torture and not acknowledge that which occurred under the Bush Administration, the Obama Administration gave rise to impunity and undermined ‘the universality of the prohibition on torture’.[158]

               This chapter will focus on, having underlined the unjustifiability of torture, accountability in the ongoing War on Terror’s utilization of torture. Primarily I will focus on how accountability has, and currently is, being pursued. Second, in considering future alternatives for accountability, I will explore the extra-legal action model of handling a breach of the torture prohibition. Then, I will analyse the controversial proposal of torture warrants by Alan Deshorwitz as a means to regulate torture practice.

1. Pursuing Accountability

Following a wave of disrespect by the Bush Administration and allies throughout the War on Terror, the prohibition on torture’s absolute nature has been heavily targeted. Whilst it retains its peremptory norm position in law, its influence has been weakened by arguments such as the ‘ticking time bomb’ scenario; however, torture’s unjustifiability remains concrete. In this post-Bush era, attention must be directed towards reinforcing the absoluteness of the torture prohibition in order to prevent a repetition of its inhumane practice. According to Juan. E. Méndez, accountability is ‘critical to preventing the recurrence of human rights violations’.[159]

               Unfortunately, accountability has not been achieved at length regarding the use of torture during the Bush administration. In fact, impunity has characterised America with minute consequences for the CIA and none for government officials. As the International Criminal Court has noted;

‘no national investigations or prosecutions have been conducted or are ongoing against those who appear most responsible for the crimes allegedly committed by members of the CIA.’ [160]

In its report, the Senate Intelligence Committee noted that the CIA failed to implement appropriate corrective actions when dealing with unauthorized interrogation techniques.[161] For example, CIA Headquarters opted against disciplinary action of an officer for the death of a CIA detainee as he had been ‘motivated to extract any and all operational information’.[162] Furthermore following an inquiry into the death of detainee Gul Rahman CIA management dismissed recommendation of accountability on the grounds that it was ‘inappropriate’ for a junior officer to be punished for following orders [163]; this contradicts the fourth Nuremberg principle;

‘The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him’.[164]

Evidentially in circumstances of accountability, the stake of national security appears to take precedence over an individual’s human rights.

Yet, the ‘real rule of law harm’ did not arise from CIA officers’ torture practice but rather from government officials who paved the way for such conduct.[165] Coincidentally those in positions of power during the Bush Administration either retired or departed office along with Bush; nobody was forced from their position as a repercussion for their immoral actions.[166] In their impunity, there is a ‘denial of truth’, a ‘hiding’ of responsibility and an ‘absence of justice’. [167] In committing universal crimes akin to the practice of torture there is ‘no possible refuge’ for conspirators except for government officials who will suffer the consequences of vilification and nothing more.[168] Nevertheless, for the sake of human rights, this is not an acceptable level of accountability for committing a crime against humanity. The essence of this was noted in the third Nuremberg principle;

‘The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law’. [169]

This principle of command responsibility is domestically present in U.S. law as a precedent in re Yamashita. [170] This case involved the prosecution, and eventual execution, of Japanese General Tomoyuki Yamashita whose troops had committed crimes against humanity against prisoners of war and the civilian population of the Philippines. Whilst Human Rights Watch cites Donald Rumsfeld as being liable under this principle [171], given Bush’s role as Commander-in-Chief during his presidency, there is potential for liability under this principle for his involvement in authorizing the torture of US detainees.

               Seeking accountability against state officials is not impossible, for example, former Chilean dictator Augusto Pinochet was indicted for human rights violations by Baltasar Garzón [172], however attempts regarding the Bush Administration so far have been fruitless. For example, the district court of Columbia dismissed the case of Ali v Rumsfeld [173] which was brought on behalf of nine men subjected to torture on the command of Rumsfeld. The district court held that U.S. officials were immune from lawsuits regarding actions that fell ‘within the scope of their official duties’. [174] Similarly, the Ninth Circuit Court of Appeal dismissed Padilla v Yoo [175] and granted Yoo ‘qualified immunity’ given that Padilla’s alleged treatment was not clearly established in 2001-2003 to amount to torture. [176]

               Internationally, accountability has been actively sought by various European domestic courts albeit with little success. Under Belgium v Senegal [177] the International Criminal Court of Justice confirmed that states party to the UN Convention against Torture were burdened with an obligation to prosecute or extradite alleged perpetrators to another country with jurisdiction for prosecution. [178] In this case, Belgium sough to compel Senegal to prosecute Hissène Habré, the former President of the Republic of Chad, or otherwise extradite him to Belgium for prosecution of alleged torture practice and other crimes against humanity. Lawsuits instigated by Belgium, Germany and even Britain for breaches of the prohibition on torture prior to 20^th January 2009 were dismissed primarily due to Bush’s continuing Presidential position. However, in November 2017 the Chief Prosecutor of the International Criminal Court, Fatou Bensouda, filed a request to investigate the alleged crimes against humanity and war crimes committed in Afghanistan;

‘The information available provides a reasonable basis to believe that…members of the U.S. armed forces…and…the CIA have committed the war crimes of torture and cruel treatment…’ [179]

 Though currently in the preliminary examination stage [180], the authorisation of this case would bring the U.S military and CIA’s torturous tactics under overdue international scrutiny. Although the U.S. is not a state party to the ICC [181], Afghanistan is which henceforth allows the ICC to assert jurisdiction over any crimes that occurred in Afghanistan’s territory.

Speculating potential accountability and its necessity can appear to be passive in targeting the breach of a jus cogen by governments, therefore there has been suggestions of bringing accountability into the state practice or the legal system through, respectively, an extra legal action model and torture warrants.

• Extra Legal Action Model

In politics obtaining ‘dirty hands’ is inevitable [182] particularly in exceptional circumstances as proposed by the ‘ticking time bomb’ scenario. It is unquestionable that the government official has violated the law; what remains an issue is the accountability the official must face for acting extra-legally. Embracing realism, the extra-legal action model acknowledges that the use of torture in some cases can be inevitable however its corrupt nature remains imperative. According to Oren Gross, this model requires a government official to publically acknowledge they practiced torture and consequently broke the law. [183] As a result, the public must participate in a ‘process of appraisal’ regarding the official’s actions and whether accountability or a pardon should occur.[184]

               This method’s appeal lies behind the absence of judicial involvement; a ‘clean’ judicial system is promoted and the judiciary can ‘fulfil its role as protector of individual rights without having to fear that by doing so it compromises the security of the state’.[185] Importantly, the absolute ban on torture remains implemented which is crucial in preventing slippage. The practice of torture ‘thrives’ when placed beyond the law [186] and any ease in its jus cogen status would catalyse a slippery slope of decline in the prohibition of torture. There is always going to be an attraction to further broaden the scope of torture practice to the point that the ‘ticking time bomb’ scenario is just one of many circumstances that is an exception to the law that is no longer a peremptory norm; ‘when torture is no longer unthinkable, it will be thought about’.[187] However, diminishment of absoluteness can also occur through choosing to pardon an official’s actions. This could result in ‘official illegality’ becoming a ‘precedent’ for officials who find themselves in certain circumstances that pose a risk to national security. [188]

               The primary issue with the extra-legal action model is the involvement of the public who, according to David Dyzenhaus, Gross anticipates to engage in ‘genuine democratic deliberation’[189]; therefore the public’s perspective of torture practice is crucial. It is difficult to imagine a majority not acknowledging torture as inhumane and cruel, a ‘forced self-betrayal’ of oneself, however, post-9/11 torture practice is viewed in a different light for proportions of the public. [190] The influence of the media dehumanising terrorist suspects and authoritative figures such as Bush, Rumsfeld and, recently, current President Donald Trump promoting torture undoubtedly shape the public’s perception of its practice:

‘I wanna keep our country safe…As far as I’m concerned we have to fight fire with fire…We’re not playing on an even field’. [192]

 Therefore there is no guarantee of accountability given the public’s lack of consensus on a perception of torture and absoluteness particularly in the face of threats to national security. It is also unclear as to how the public will judge the official’s actions; any poll or vote is unrealistic and impractical.[193] Cheryln Chang suggests that the decision should be finalised at the ‘highest level possible’ of authority, ideally the courts [194], similar to the torture warrants model. 

• Torture Warrants

In an outright rejection of absoluteness, Alan Deshorwitz advocates the introduction of torture warrants as a means to regulate torture in extreme circumstances under the judiciary’s supervision. In response to the Landau Commission of Inquiry[195] endorsing the necessity defence, Deshorwitz proposed that the torture warrants model would provide ‘accountability, record-keeping, standards and limitations’.[196] Contrary to the extra-legal action model, torture warrants actively prevent torture practice ‘below the radar’; if the prohibition of its practice is cemented in law then so should the regulation of its utilization in extreme scenarios.

               Contrary to the public involvement in the extra-legal action model, torture warrants directly involve the judiciary;

‘The essence of a democracy is placing responsibility for difficult choices in a visible and neutral institution like the judiciary’. [197]

In deciding whether to advocate the practice of torture or not, judges are hereby complicit in the act itself; however, this can prove difficult. As Sanford Levinson highlights, the late Justice Scalia, in relation to capital punishment cases, stated that judges are complicit to the extent that ‘if they hold a moral obligation against the act’ then they should not chair the proceedings.[198] Assuming the country’s highest court would hear torture warrant proceedings, it is notable that in America the President nominates and appoints justices of the U.S. Supreme Court; this is alarming considering Trump’s positive approach to torture. For example, in April 2017 the Senate confirmed Trump’s nomination of Neil Gorsuch to the Supreme Court following the death of Justice Scalia; in the past Justice Gorsuch fought the disclosure of the Abu Ghraib photographs and defended the state’s extraordinary rendition of Khalid El-Masri. In appointing justices like this, there is potential for torture warrants to be provided with ease and normalised to the detriment of all detainees’ human rights for the sake of protecting national security; slippage is a very real danger that accompanies Deshorwitz’s torture warrants. 

Practically, given time is precious in these emergency scenarios, it is unlikely that the judiciary would be able to make ‘quick and right decisions’ in such a short time frame [199] particularly given the need to consider both human rights and national security in their deliberation. It is difficult to imagine government officials waiting patiently for a judge’s permission to torture especially when national security is at risk and given the fact it has been practiced illegally consistently already. Finally, judicial torture warrants would be damaging to the integrity and perception of the legal system; it would be conflicting to the ‘genius and spirit’ of the law.[200] Integrating torture into the legal system is a common feature of tyrannical governments [201] and would contravene the essence of America as a democracy the ‘land of the free’.

• Summary

The issue of accountability concerning the Bush administration was the focus of this chapter. Various avenues have been explored in seeking accountability for Bush and his associates however in nearing seventeen years since the War on Terror began there is a distinct lack of prosecution for practicing torture on detainees. Whilst the ICC offers a glimmer of hope for the future, the likelihood of Bush himself being held accountable is unlikely; realistically the CIA and U.S. military will face prosecution. Suggestions of different avenues to approach accountability are few and flawed with torture warrants contravening absolute prohibition and the extra-legal action model, whilst better, is also flawed and undefined regarding who undertakes an appraisal of an official’s actions. Broadly speaking, transitional justice in accountability terms is failing in America where impunity is rife, contradicting a principle of the United Nations:

‘It is the duty of every state under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity’.[202]

Concluding Thoughts

‘There have been, and are now, certain foreign nations…which convict individuals…hold them in secret custody and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of this Republic, America will not have that kind of government’ – Justice Black.[203]

This dissertation has aimed to identify the unjustifiability of torture practice in the War on Terror for the sake of national security and at the cost of an individual’s human rights. As Chapter one indicates, the prohibition of torture is an absolute right that is guaranteed regardless of an individual’s actions; therefore it is applicable to detainees suspected of terrorism. However, this jus cogen has been regularly breached and its protection denied for detainees being held by the CIA and assisting organisations who implore, as outlined in Chapter two, that their actions are necessary in ‘emergency’ situations. Even more deplorable is the lack of accountability that has been achieved, as explored in Chapter three, particularly for those individuals who were wrongly detained or subjected to an extraordinary rendition.[204]

               The insistence that torture is necessary in ‘ticking time bomb’ scenarios is an argument that has lost credibility in the War on Terror. The breadth of torture committed by America goes beyond the rare emergency scenario first explored by Bentham. Instead, it has been reduced to a regular potential event that has saturated interrogations with torturous methods to the point of ‘normalisation’ as similarly endorsed by media outlets and various academics and politicians; yet despite this, it ‘is still torture no matter how many steps we remove ourselves from the interrogation room’.[205] It is crucial to reemphasise the prohibition of torture as a peremptory norm in order to prevent the U.S government and allies, present and future, from committing the same atrocities authorised by the Bush administration when blinded by national security in the wake of 9/11. 

It is inescapable for the Bush administration that they knowingly authorised the practice of torture; what remains unclear is whether they will be held accountable for such. Whilst it is unprecedented for a former U.S. president to be prosecuted for a crime against humanity, Professor Manfred Nowak has stated that the U.S. government ‘is required to take all necessary steps’ to bring Bush before a court.[206] However, it is more probable that the CIA and U.S. military will face accountability in the International Criminal Court, provided the investigation progresses beyond its preliminary stages; yet there remains uncertainty as to whether prosecution will be successful. Undeniably, there is an issue of impunity that is preventing the prosecution of the practice of torture by America.

Obama failed to acknowledge that torture had been utilised by the U.S. during his presidency; a task that was subsequently carried out by the Senate Intelligence Committee. However given the election of President Trump, who has made no secret of his desire to reintroduce enhanced interrogation, one wonders whether the SCI report successfully directed public attention to the abhorrent practice of torture. Alternatively, an example, albeit unprecedented [207], is to be had in the Truth and Reconciliation Commission in South Africa. Following the end of apartheid in 1994, the TRC was constructed to record human rights violations by the relevant perpetrators as well as provide rehabilitation for victims. Correspondingly, on American soil, in 2009 the Illinois Torture Inquiry and Relief Commission was introduced to investigate torture allegations against the Chicago police department; if such a truth commission were to be replicated, albeit on a larger scale regarding the War on Terror, it would promote deterrence from future torture utilization which, given the impunity in the U.S., is essential. This is in line with the suggestion of Human Rights Watch to establish an ‘independent non-partisan commission’ to investigate allegations of torture as well as ‘make recommendations to ensure that such widespread and systematic abuses are not repeated’.[208] Akin to the extra-legal action model, TRC hearings were public and also received media coverage to reach a larger audience. In capturing public interest and building awareness there is potential for a strengthening demand for accountability amongst the public that the SCI report fell short of achieving. However, truth commissions are a complex rather than simple solution and possess notable flaws that diminish their effectiveness as a tool for transitional justice. For example, the TRC lacked transparency regarding revealed information. [209] and, in relation to America, there would be uncertainty regarding compellability of senior government officials to testify.

Accountability aside, a reoccurrence of human rights malpractice during the Bush administration must be prevented. It is practically advisable for America to change its approach towards detainees, particularly those suspected of terrorism. Military training focuses on ‘othering’ the enemy to prevent emotional responses such as remorse and compassion from interfering with duty; dehumanising the enemy has characterised warfare since the 20^th century [210] As proposed by Amnesty International, reform should be introduced to mainstream human rights content within military training. [211] It calls for an evaluation of the Expanded International Military Education and Training courses by the U.S. departments of State and Defence as well as introducing further compulsory human rights courses that should be taken by all military trainees [212] Furthermore, it is necessary to strengthen the vetting process of trainees’ backgrounds. Whilst the Leahy Law [213] has been implemented since 1996 it can be reinforced to ensure a standardised vetting procedure is consistent across all embassies. [214] In doing so, recruitment will be limited to individuals capable of ‘dealing with the complexities and ambiguities of interrogation’. [215]

Currently, transitional justice is failing in America. Although the Obama administration began with an insistence to combat terrorism in a manner consistent with American values and ideals, [216] there remains a significant lack of accountability for the abuse of torture practice and now there is a President that has openly favoured torturous techniques such as waterboarding.[217] With the appointment of Gina Haspel as director of the CIA, there is an underlying threat that tolerance of torture, and subsequently its practice, is being established in the White House once again. It is, therefore, more important than ever to acknowledge the unjustifiability of torture in practice and its unacceptable toleration and lack of accountability in the 21^st century. As Michael Haas has stated, civilisation cannot tolerate ignorance of these wrongs because civilisation simply cannot survive their being repeated over and over again [218]; the threat to national security undoubtedly pales in comparison.

1. Suresh v Canada (Minister of Citizenship and Immigration) (2002) SCC 1, [2002] 1 SCR 3 [51].
2. As enshrined in Article 7(f) Rome Statute of the International Criminal Court 1998.
3. Gäfgen v Germany App. No. 22978/05 ECtHR 1st June 2010, p.60.
4. Article 1.1 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment 1984.
5. App. No. 5310/71 ECtHR 18^th January 1978.
6. Hereby referred to as the Convention.
7. Hereby referred to as the Court.
8. Hereby referred to as the Commission. 
9. [1969] 12 Yearbook European Convention on Human Rights.
10. Ibid p.186.
11. Ireland (n5).
12. Illegal interrogation methods originated from the British Military that comprised of hooding, wall-standing, deprivation of sleep, subjection to noise and deprivation of food and drink.
13. Ireland (n5) [167].
14. Ireland (n5) [162].
    1. Cullen quoted in M. Farrell ‘The Prohibition of Torture in Exceptional Circumstances’ (CUP 2013) p.69.
15. Ireland (n5) Separate Opinion of Judge Zekia, p.64.
16. [1989] 2 Sri L R 312.
17. N. Jayawickrama ‘The Judicial Application of Human Rights Law – National, Regional and International Jurisprudence’ (CUP 2002) p.302.
18. App. No. 5577/72 5583/72 ECtHR 5^th April 1973.
19. O. Bakircioglu and B. Dickson ‘The European Convention in Conflicted Societies: The Experience of Northern Ireland and Turkey’ (2017) 66(2) International and Comparative Law Quarterly 263, p.272.
20. Ireland (n5).
21. Northern Ireland: the Parker Report (1972) DEFE 24/209 para 10.
22. Ireland (n5).
23. Brian Simpson quoted in B. Dickson ‘The European Convention on Human Rights and conflict in Northern Ireland’ (OUP 2010) p.150. 
24. Ireland (n5).
25. App. No. 25803/94 ECtHR 28^th July 1999.
26. The applicant alleged he was subjected to repeated physical violence, urinated on by a police officer, threatened with a blowlamp and syringe and raped by a police officer using a truncheon.
27. App. No 55856/72 ECtHR 25^th April 1978.
28. Ibid [31].
29. Selmouni (n26) [101].
30. N. S. Rodley and M. Pollard ‘The Treatment of Prisoners under International Law’ (3^rd edn OUP 2010) p.82.
31. Ireland (n5).
32. On 20^th March 2018, the ECtHR rejected the Irish Government’s request to revise the controversial judgment of 1978
33. J. Bishop ‘The Question of Torture’ (2007) 159 Law and Justice – The Christian Law Review 103, p.110.
34. Further discussed in Chapter 2.
35. J.E. Méndez ‘United Nations Interim Report of the Special Rapporteur on Torture’ (5^th August 2016) A/71/298 p.4 [7].
36. Ibid p.4 [9].
37. App. No. 8139/09 ECtHR 17^th January 2012.
38. Contrary to, for example, Article 6 of the European Convention on Human Rights which provides the right to a fair trial.
39. Gäfgen (n3).
40. Ibid [167].
41. Othman (n38) [265].
42. Ireland (n5).
43. Ilhan v Turkey App. No. 22277/93 ECtHR 27^th June 2000.
44. Greek case (n9).
45. B. Dickson (n24) p.139. 
46. Ireland (n5).
47. Ireland (n5) Separate Opinion of Judge Zekia p.64
48. Ireland v United Kingdom (App. No. 5310/71) (Report of the Commission, 25 January 1976) p.402.
49. M. Nowak ‘Report of the Special Rapporteur on the Question of Torture’ (23^rd December 2005) UN Doc. E./CN.4/2006/6 p.13 [39].
50. M. Farrell (n15) p.6.
51. App. No. 59261/00 ECtHR 9^th March 2006.
52. Ibid [62].
53. App. No. 77617/01 ECtHR 26^th January 2006.
54. Ibid [135].
55. Belgium v Senegal [2012] International Court of Justice, Judgment of 20^th July 2012, Separate Opinion of Judge Cançado Trindate [182].
56. This provision was created to showcase the UK’s commitment to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984.
57. J. Waldron ‘Torture and Positive Law: Jurisprudence for the White House’ (2005) 105 Columbia Law Review 1681, p.1722.
58. W. A. Schabas ‘The European Convention on Human Rights: A Commentary’ (OUP 2015) p.164.
59. S. P. Subedi ‘The Effectiveness of the UN Human Rights System’ (Routledge 2017) 73. For example, Thomas Lubanga became the first person to be convicted as a war criminal by the International Criminal Court in 2012 due to, for example, his use of child soldiers.
60. App. No. 22414/93 ECtHR 15^th November 1996.
61. Ibid. 
62. App. No. 14038/88 ECtHR 7^th July 1989.
63. Chahal (n61).
64. Indelicato v Italy App. No. 31143/96 ECtHR 18^th October 2001.
65. App. No. 21987/93 ECtHR 18^th December 1996.
66. Ibid [62].
67. App. No. 37201/06 ECtHR 28^th February 2008.
68. Chahal (n61).
69. S. C. Greer ‘The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights’ (Strasbourg: Council of Europe Publishing 2005) p.5.
70. Ireland (n5).
71. F. Ní Aoláin quoted in S. Levinson (ed.) ‘Torture: A Collection’ (OUP 2004) p.216.
72. Ireland (n5) Separate Opinion of Judge O’Donoghue, p.70.
    1. Cullen quoted in M. Farrell (n15) p.7.
73. S.C. Greer (n70) p.27.
74. Ireland (n5) 162.
75. Chahal (n61).
76. Ireland (n5).
77. Karen. J. Greenberg and Joshua. L. Dratel quoted in B. Dickson (n24) p.167.
78. Republican Senator John McCain speaking in Senate on 9^th December 2014 about the CIA Torture Report.
79. For example waterboarding.
80. Hereafter referred to as the Convention.
81. Re Kemmler 136 U.S. 436 (1890) p.447 – ‘punishments are cruel when they involve torture or lingering death’.
82. Article 5 – ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment’.
83. The former head of the National Security Counter-Terrorism Group.
84. George W. Bush on September 11^th 2001 quoted in ‘M. Haas ‘George W. Bush, war criminal? : The Bush administration’s liability for 269 war crimes’ (Praeger 2009) p.4.
85. Examples of techniques included are waterboarding, sleep deprivation and binding in stress positions.
86. As decreed by Article 2 Section 2 Clause I of the United States of America Constitution.
87. Secret facilities outside US territory that the government uses to detain alleged terrorists.
88. Ireland (n5).
89. Public Committee against Torture in Israel v The State of Israel H.C. 5100/94 (Israel 1999).
90. R. Blakely ‘British Torture in the War on Terror’ (2017) 23(2) European Journal of International Relations 243, p.256-259.
91. Husayn v Poland App. No. 7511/13 ECtHR 28^th January 2013.
92. Nasr and Ghali v Italy App. No. 44883/09 ECtHR 23^rd February 2016.
93. Al Nashiri v Romania App. No. 33234/12 ECtHR 29^th June 2016.
94. Hereafter referred to as the Court.
95. J. Waldron ‘Torture, Terror and Trade-offs: Philosophy of the White House’ (OUP 2010) p.189.
96. 414 F.Supp.2d 250 (E.D. N.Y. 2006).
97. Ibid p.30.
98. J. Waldron (n97) p.187.
99. ‘A condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylised and stereotypical fashion by the mass media’ – S. Cohen ‘Moral Panics and Folk Devils’ (Abingdon: Routledge 2011) p.1.
100. J. Waldron (n97) p.216.
101. Henry Shue quoted in M. Payne ‘Henry Shue on Basic Rights’ (2008) 9(2) Essays in Philosophy Article 5, p.6.
102. Press Release Announcement by Ari Fleischer on behalf of the White House’s Office of the Press Secretary (7^th February 2002) <https://www.state.gov/s/l/38727.htm> accessed 31^st January 2018.
103. George W. Bush at a Press Conference with President Jacques Chirac of France (6^th November 2001).
     1. Dorfman quoted in R. Stephen-Brown ‘Torture, Terrorism, and the Ticking Bomb: A Principled Response’ (2007) 4 Journal of International Law and Policy 1, p.20.
104. ‘It is dishonest for a man deliberately to shut his eyes to facts which he would prefer not to know’ – Twinsectra Ltd v Yardley and Others [2002] UKHL 12, [2002] 2 AC 164 [112] (Lord Millett).
105. J. Waldron (n97) p.188.
106. A hypothetical scenario of a series of unlikely assumptions designed to prejudice the moral outcome.
107. M. Farrell (n15) p.215-216.
108. Jane Mayer ‘Whatever It Takes’ New Yorker (19^th February 2007) quoted in ‘K. Kovarovic ‘Our Jack Bauer Culture: Eliminating the Ticking Time Bomb Exception to Torture’ (2010) 22(2) Florida Journal of International Law 251, p.252.
109. John T. Parry quoted in R. Stephen-Brown (n103) p.8.
110. Memo from Assistant Attorney General Jay Bybee to White House Counsel in ‘Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A’ (1^st August 2002) p.40-41.
111. App.No. 39630/09 ECtHR 13^th December 2012 – this was the first rendition case decided by the ECHR.
112. D. Priest ‘Wrongful Imprisonment: Anatomy of a CIA Mistake’ Washington Post (4^th December 2005).
113. D. Ross ‘The Right and the Good’ (Oxford: Clarendon, 1930) p.61.
114. The Public Committee against Torture in Israel (n91).
115. ibid p.33 [36].
116. Even in murders cases such as R v Dudley and Stephens (1884) 14 QBD 273.
117. Whilst the UK is not free of torture scandal it has a law that explicitly criminalises torture more so than the USA i.e. Criminal Justice Act 1998 s.134; Human Rights Act 1998 Sch.1 Art.3.
118. Y. Ginbar ‘Why Not Torture Terrorists? Moral, Practical and Legal Aspects of the ‘Ticking Bomb’ Justification for Torture’ (OUP 2008) p.338.
119. Anonymous US Defence Department Official quoted in A.J. Bellamy ‘No Pain, No Gain? Torture and ethics in the war on terror’ (2006) 82(1) International Affairs p.132.
120. M. Farrell (n15) p.103.
121. H. van Erp ‘Political Obligation, Dirty Hands and Torture; A Moral Evaluation’ (2013) 32(1) South African Journal of Philosophy 109, p.113.
122. Ibid p.117.
123. Further elaborated in Chapter 3.
124. M. Walzer, ‘The Problem of Dirty Hands’ (1973) 2 Philosophy and Public Affairs 160, p.167.
125. El-Masri (n114).
126. A.J. Bellamy (n122) p.131.
127. (1884) 14 QBD 273.
128. Ibid p.9.
129. A.J. Bellamy (n122) p.124.
130. Ibid.
131. J. Waldron (n97) p.323-325.
132. J. Waldron (n97) p.189.
133. Tony Blair December 2005 quoted in R. Blakely (n92) p.248.
134. For example, Justice and Security Act 2013 Part II Closed Material Procedures.
135. R. Blakely (n92) p.247.
136. For example, US rendition practice and ‘black-sites’.
137. 548 U.S. 557.
138. Ibid p.69.
139. El-Masri (n114).
140. James A. Goldston quoted in ‘N. Kulish ‘Court Finds Rights Violation in C.I.A. Rendition Case’ <http://www.nytimes.com/2012/12/14/world/europe/european-court-backs-cia-rendition-victim-khaled-el-masri.html?_r=0> accessed 13^th February 2018.
141. John T. Parry quoted in M. Farrell (n15) p.212.
142. App. No. 28761/11 ECtHR 24^th July 2014.
143. Y. Ginbar (n121) p.69.
144. C. Beccaria ‘An Essay on Crimes and Punishments’ (1764) p.59 <http://lf-oll.s3.amazonaws.com/titles/2193/Beccaria_1476_Bk.pdf>.
145. D. Sussman ‘What’s Wrong with Torture’ (2005) 33 Philosophy and Public Affairs 1, p.13-14.
146. Ibid p.29.
147. Enshrined in Article 6(2) European Convention on Human Rights and although not expressly cited in the Constitution of the United States of America it is implied from the 5^th, 6^th and 12^th amendments as well as Coffin v United States 156 U.S. 432 (1895).
148. Darius Rejali quoted in M. Farrell (n15) p.140.
149. J. Bell ‘Behind This Mortal Bone: The (In)Effectiveness of Torture’ (2008) 83(1) Indiana Law Journal 339, p.352.
     1. Edmondson ‘The Moral Justification against Torture’ (2012) 1(72) Manchester Student Law Review 72, p.74.
150. M. Farrell (n15) p.135.
151. S. E. Rasmussen and O. Bowcott ‘Prosecutor seeks to investigate Afghan war crimes allegations – and claims of US torture’ 3^rd November 2017 <https://www.theguardian.com/world/2017/nov/03/war-crimes-prosecutor-seeks-investigation-into-afghan-conflict-icc-us-force-cia-taliban> accessed 12^th December 2017.
152. Executive Order 13491.
153. Executive Order 13492.
154. S. Cammarano ‘I beg your pardon: Maintaining the Absolute Prohibition on Torture through the Presidential Pardon’ (2012) 69(4) National Lawyers Guild Review 197, p.197.
155. J. E. Méndez (n36) p.22 [90].
156. International Criminal Court Report on Preliminary Examination Activities in Afghanistan (4^th December 2017) p.59 [269].
157. The Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (9^th December 2014) S. Rpt. 113-288, p.14.
158. Ibid.
159. L. H. Seyfarth ‘Facing an Ugly Truth: The Senate’s Report on CIA torture as truth-telling’ (2017) 18(2) Oregon Review of International Law 99, p.121.
160. Principles of International Law Recognised in the Charter of Nuremberg Tribunal and in the Judgment of the Tribunal (1950). This is supported by Article 33 of the Rome Statute of the International Criminal Court 1998.
161. S. I. Vladeck ‘The Torture Report and the Accountability Gap’ (2015) 61(2) Georgetown Journal of International Affairs 174, p.176.
162. L.H. Seyfarth (n163) p.120.
163. P. Bozzam ‘Impunity: an impossible reparation’ (2000) 69(1) Nordic Journal of International Law 27, p.29.
164. M. Haas (n86) p.232.
165. Nuremberg (n164).
166. 327 U.S. 1 (1946).
167. Human Rights Watch ‘Getting Away with Torture: The Bush Administration and Mistreatment of Detainees’ 12^th July 2011 <https://www.hrw.org/report/2011/07/12/getting-away-torture/bush-administration-and-mistreatment-detainees> accessed 9 March 2018.
168. Pinochet died without being convicted of any crimes.
169. 649 F.3d 762 (D.C. Cir. 2011).
170. Ibid pg.21.
171. 678 F.3d 748 (9th Cir. 2012).
172. Ibid p.4510.
173. Belgium (n56).
174. Ibid p.36-37.
175. International Criminal Court (n160) p.55 [253].
176. As is a request to investigate similar activities by UK nationals in Iraq.
177. George W. Bush renounced Bill Clinton’s signature on the Rome Statute 1998, which created the International Criminal Court, on 6^th May 2002. Added protection took form in the American Service-Members’ Protection Act which Bush signed into law on 2^nd August 2002.
178. As proposed by Michael Walzer (n127) and discussed in Chapter 2.
179. M. Farrell (n15) p.188.
180. Ibid.
181. M. Farrell (n15) p.191.
182. A.J. Bellamy (n122) p.146.
183. Professor Sanford Kadish quoted in ‘M. Strauss ‘Torture’ (2003) 48(1 & 2) New York Law School Law Review 201, p.268.
184. M. Farrell (n15) p.189.
185. ibid.
186. David Sussman quoted in C. Chang ‘The Absolute Prohibition on Torture: Extra-Legal Action and Ex-Post Ratification’ (2007) 2007 UCL Jurisprudence Review 27, p.29.
187. L.H. Seyfarth (n163) p.113.
188. Donald Trump speaking in an interview with ABC News 26^th January 2017 <https://www.telegraph.co.uk/news/2017/01/26/full-transcript-president-donald-trumps-interview-abc-news/> accessed 13^th March 2018.
189. C. Chang (n190) p.38.
190. Ibid.
191. Authorised the use of moderate physical pressure in interrogations in Israel by the General Security Services.
192. Alan Deshorwitz quoted in Levinson (n72) p.266.
193. Ibid p.264.
194. M. Farrell (n15) p.184.
195. C. Chang (n190) p.44.
196. J. Waldron (n58) p.1719.
197. Ibid p.1720.
198. D. Orentlicher, ‘Report of the independent expert to update the Set of principles to combat impunity’ E/CN.4/2005/102/Add.1 8^th February 2005, p.5.a.
199. Ashcroft v Tennessee 322 U.S. 143 (1944), p.155.
200. For example Arar (n98).
201. Robert N. Strassfeld quoted in ‘M. P. Schart and R. T. Hood ‘The Elephant in the Room: Torture and the War on Terror’ (2006) 37(2) Case Western Reserve Journal of International Law 145, p.152.
202. Professor Manfred Nowak in an interview with German television program ‘Frontal 21’, 20^th January 2009 < https://harpers.org/blog/2009/01/un-rapporteur-initiate-criminal-proceedings-against-bush-and-rumsfeld-now/> accessed 28^th March 2018.
203. S. Cammarano (n158) p.205.
204. Human Rights Watch (n170) accessed 2^nd April 2018.
205. Cammarano (158) p.208.
206. G. Bird and J. Bird ‘Human Rights and the Military’ (2005) 30(2) Alternative Law Journal 81, p.85.
207. Amnesty International USA ’Unmatched Power, Unmet Principles: The Human Rights Dimensions of US Training of Foreign Military and Police Forces’ (New York: Amnesty International USA publications, 2002) p.v.
208. ibid p.54.
209. Requires screening the background of military and police trainees for past human rights violations.
210. Amnesty International USA (n211) p.53.
211. S.M. Kleinman ‘The Promise of Interrogation v. the Problem of Torture’ (2009) 43(4) Valparaiso University Law Review 1577, p.1589.
212. Barack Obama quoted when signing Executive Order 13492 to close Guantanamo Bay within the year, 21^st January 2009 <https://www.npr.org/templates/story/story.php?storyId=99728679> accessed 31^st March 2018.
213. Donald Trump (n192).
214. M. Haas (n86) p.219.