Crimes of War - Educator's Guide: Torture as a weapon in the war

Essential question: Has international law been effective in eliminating torture and terrorism around the world?

This lesson will provide legal background on torture and terrorism. International documents that address torture and terrorism will be examined and analyzed to consider the role they play in protecting human rights and creating accountability in the international community. For more information and a deeper understanding of torture and terrorism consult the corresponding chapters in Crimes of War, referenced above. This chapter may be used to address the issue of torture and terrorism in international relations, as part of a lesson on international humanitarian law, or as part of larger unit on International Relations. Additional information regarding the topic of terrorism and torture can be found in the final section of this chapter entitled "Additional Resources".

After the devastation of World War II, international laws were created to prevent repetition of the atrocities that took place during the Holocaust. Human dignity was to be upheld by states under all circumstances in times of war and peace. These laws and rules were embodied in documents such as the Geneva Conventions, the Convention Against Torture, the Universal Declaration of Human Rights as well as international customary law (customary law is understood to be "a general practice accepted as law"). During the post-World War II era, two different types of law were developed to ensure humanitarian protection and human rights: international humanitarian law (IHL) and international human rights law. (A further description of IHL and international human rights law can be found in the Background and key concepts section of this guide.)

Despite the legal foundations created by IHL and international human rights law, following the attacks of September 11, 2001 on the World Trade Center in New York City, these international laws and rules began to unravel. The United States declared a "war on terrorism" and began to test the long-standing international agreements on terrorism, detention, interrogation, and torture. The "war on terrorism" required a new way of thinking about war and the laws of war. Historically, the notion of war was typically between two or more states, but never against a method of fighting such as terrorism. This new notion of war, introduced by the United States, challenged the concepts and laws established by IHL and demanded the application of international human rights law to protect people in terms of both torture and terrorism.

Additionally, the U.S. government began to reinterpret international laws addressing detention and interrogation. One such example was the establishment of an off-shore Central Intelligence Agency (CIA) prison system which remained untouched by international law or accountability. This was supported by a war resolution passed by Congress in 2001 and further supported by President George W. Bush, who then signed a classified presidential finding. The actions of the U.S. government have created a new challenge and dilemma in IHL and international human rights law.

These prisons, often referred to as "black sites," were located in Afghanistan, Eastern Europe, Thailand, and the U.S. military's Guantanamo Bay compound in Cuba. The legality of these prisons has been debated within the international community in terms of crimes against humanity, violations of fundamental norms of human rights, and whether the U.S. government was appropriately respecting its commitment to the Geneva Conventions and the Convention against Torture.

Much of the information on the treatment and conditions in these prisoners is classified, made available only to small groups within the CIA, the Justice Department, the White House, and the National Security Council. In the case of Abu Ghraib there was considerable debate as to whether or not the torture at Abu Ghraib was U.S. policy or was, in fact, in opposition to much of the policy of the U.S. government (more specifically Congress). Members of Congress, such as Senator John McCain, attempted to challenge the Bush administration's actions by passing legislation to address the lack of transparency. McCain's amendment specifically sought to make the Army Field Manual on Intelligence Interrogations a binding interrogation policy for all those in military custody, and to reinforce the ban on cruel, inhuman and degrading treatment of detainees, which the White House claimed did not apply to U.S. actions abroad.[1] In addition, there have been court martial cases that indicate a desire to distance the government from torture as policy.

In addition to these "black sites", a second tier of prisons also existed. These prisons were run by foreign security services in their own countries. Prisoners were transported by the CIA to these prisons through the process of rendition. Before 9/11, "rendition" applied to fugitives abroad who would be "rendered" to justice, meaning to a U.S. or foreign court. However, post 9/11, extraordinary "rendition" was used to transfer subjects to CIA-run or foreign-run prisons, usually without legal proceedings. Although all "renditions" required the consent of foreign intelligent services, there was some doubt among CIA lawyers that this type of rendition was legal.[2]

After 9/11, CIA and White House officials also urged for explicit guidelines that would allow the use of highly coercive methods against "high-valued detainees". As a result, the Justice Department's Office of Legal Council authorized "enhanced interrogation techniques" (EITs). EITs include "waterboarding", which simulates drowning, "water dousing", placing detainees in cold rooms, under prolonged stress and in duress positions, forced liquid diets, sleep deprivation, noise and light bombardment, extreme isolation, and other measures which are often used in combination with another.[3]

If a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network," said the memo, from the Justice Department's office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.

The U.S. government's justification for the detention, interrogation, and imprisonment of suspected terrorists can be understood by examining a memo composed by the Justice Department in August 2002. According to the memo, the Justice Department advised the White House that torturing Al Qaeda terrorists in captivity abroad "may be justified", and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in President Bush's war on terrorism. Furthermore, the memo stated that if a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network". In addition, it stated that arguments focusing on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later. Therefore, some U.S. officials believed that the detention, interrogation, and imprisonment of suspected terrorist was justified in order to protect the people of the U.S. against any future attacks by Al Qaeda or any other terrorist groups.[4]

Terrorism and torture plague not only the United States, but virtually every country in the world. The September 11^th attacks on the World Trade Center triggered a re-examination of terrorism, detention, and torture by not only the United States but the entire world.

Torture is defined by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." The Convention makes clear that "no exceptional circumstances whatsoever" may be invoked for a justification for torture. However, it does not include suffering arising only from, inherent in or incidental to lawful sanctions.

Torture has also been prohibited in the Geneva Conventions and the International Covenant on Civil and Political Rights. According to the Conventions, detainees must at all times be humanely treated (Geneva III, article 13, Geneva IV, article 27). Detainees may be questioned, but any form of "physical or mental coercion" is prohibited (Geneva III, article 17, Geneva IV, article 31). Women are also protected from rape and any form of indecent assault (Geneva IV, article 27). The International Covenant on Civil and Political Rights states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, in particular, no one shall be subjected without his free consent to medical or scientific experimentation (article 7) and that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person" (article 10).

Other international documents also denounce torture such as the Universal Declaration of Human Rights, the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, and the UN Standard Minimum Rules for the Treatment of Prisoners. Moreover, torture is considered a fundamental principle of international law that is binding to all states. This is known as a "peremptory norm" of international law because it pre-empts all other customary law. All states are bound to respect the prohibition on torture or ill-treatment, even if they are not parties to treaties that prohibit torture. They are also obliged to prevent and punish acts of torture, even if they are not parties to treaties that require them to do so. Torture is a crime against humanity as defined in the Rome Statute of the International Criminal Court.

Terrorism first appeared on the international agenda in1934 when the League of Nations started to discuss drafting a convention for the prevention and punishment of terrorism. The Convention was eventually adopted in 1937, but never came into force.

Since 1963, the international community has committed to 13 universal legal instruments to prevent terrorist acts (see the Additional Resources section below for a complete list). These instruments were developed under the auspices of the United Nations as well as the International Atomic Energy Agency (IAEA). In 2005, the international community also introduced changes to three of these universal instruments to specifically address the threat of terrorism; on 8 July states adopted the Amendments to the Convention on the Physical Protection of Nuclear Material, and on 14 October they agreed to both the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. Intentional attacks against civilians and acts or threats of violence designed to spread terror among civilian populations are forbidden in all armed conflict, according to the laws of war.

Since the 9/11 attacks, the international community has also taken specific actions to combat terrorism. On September 8, 2006 a global counter-terrorism strategy, entitled the United Nations Global Counter Terrorism Strategy, was adopted by all 192 member states as one of the last acts of the 60^th session of the General Assembly. This was the first time that all countries in the world agreed upon a common approach to fighting terrorism. Prior to the adoption of the UN Global Counter- Terrorism Strategy, The UN High-Level Panel on Threats, Challenges and Change described terrorism as "any action…that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act".[5] This panel helped to draw attention to the need to develop a comprehensive strategy to fight terrorism which led to the development of the United Nations Global Counter-Terrorism Strategy.

The global counter-terrorism strategy is based on the following five pillars as proposed by the former Secretary General Kofi Annan at the Summit in September 2005: dissuading groups from resorting to terrorism, denying terrorists the means to carry out an attack, deterring states from supporting terrorist groups, developing state capacity to prevent terrorism, defending human rights in the context of terrorism and counter-terrorism.[6]

Despite the universal acceptance of the global counter-terrorism strategy, there continues to be varying definitions of terrorism within states. The U.S. Department of Defense defines terrorism as "the calculated use of violence or the threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological."[7] In addition, the U.S. State Department defines international terrorism as "terrorism conducted with the support of a foreign government or organization and/or directed against foreign nationals, institutions or governments". The differences in the definitions of terrorism among the UN and United States illustrate the global community’s continued lack of consistency in clearly defining a terrorist.

1. What international conventions protect prisoners of war and dictate standards of treatment? How does the U.S. government interpret these conventions? Do you think these arguments are justified?

2. Do you think that there are situations when the use of enhanced interrogation techniques (EITs) is justified? If so, when? How might this affect the government's ability to legally prosecute criminals?

3. Do you think the Commander in Chief's executive power to override statues, such as the McCain Amendment, is justified? Explain your position.

4. How did the U.S. government legally justify the detention, interrogation and imprisonment of suspected terrorists after 9/11? Do you think the justification was legal or political?

5. What is "rendition" and how has the U.S. government used it to hold detainees abroad? What implications does this have for holding other countries accountable for human rights violations?

6. How did the U.S. Supreme Court's ruling on the treatment of terrorist suspects in June 2006 highlight the balance of power among government branches?

7. If terrorism is fundamentally undermining the law, does this justify pre-emptive action? If so, what kind?

8. At times of war, the highest priority is to save lives. Should saving civilian lives come at all cost? Are there international laws that might be overridden in order to save lives? If there are, what do you think would be the proper way to do this?

9. The media exposure of Abu Ghraib used graphic photographs and detailed stories to reveal the unacceptable behavior of American soldiers towards Iraqi detainees. What role did the media play in influencing public opinion and government policies? How do you think media exposure shapes our expectation of government accountability?

10. There are many international conventions, IHL and international customary law that address and seek to eradicate specific acts of terrorism (see the listing the Additional Resources section below). However, at the 2005 World Summit the United Nations was unable to ban terrorism. What reasons do you think states gave for not agreeing to ban terrorism? Do you think that terrorism should be banned? What do you think would be necessary to eradicate terrorism internationally?

11. The UN High-Level Panel on Threats, Challenges and Change defines terrorism as "any action…that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or abstain from doing any act". Why do you think that some people think that this definition is incomplete? Do you think that it is incomplete? What else might be included?

12. In the Crimes of War chapter "Terrorism", the author states: "the notion of war has historically been restricted to conflicts between states and there cannot be a war against a method of fighting". Do you agree or disagree with this statement? Why? How might this statement relate to the United States’ "war on terrorism"?

13. In the Crimes of War chapter "Torture" the author states: "there are disturbing signs that after September 11, 2001, torture, once considered abhorrent by Western public opinion and governments, is viewed by some as a necessary evil in the fight against terrorism". Do you agree or disagree with this statement? Why or why not? What are the possible repercussions of your position?

1. Ask students to define torture. This could be written or interpreted artistically, through a drawing or sketch. Ask for volunteers to share their presentation with the class and discuss the variety of interpretations. Distribute definitions of torture as outlined in the Geneva Conventions, the Convention against Torture, and the International Covenant on Civil and Political Rights as provided in the Introduction to the Guide. Discuss the similarities and inconsistencies in these definitions and then have them develop a group definition of torture.

2. Divide students into small groups and provide a hypothetical scenario in which students will reference the group definition of torture as they make decisions about the best course of action. Below is a hypothetical situation provided by the Public Broadcasting System (PBS).

The Scenario: A major U.S. city has suffered an attack by a suspected terrorist organization. A phone call was made to the local FBI office identifying the group responsible and providing details only someone close to the attack would know. The caller also told authorities that another attack by the group was inevitable within 24 hours unless the U.S. consented to pulling all troops out of the Middle East.

Description of the Suspect: A suspect has been arrested who was traced to the phone booth identified as the site of the warning phone call. Authorities are very sure this suspect has the information they need.

Working in small committees, students will recommend guidelines for the questioning of this suspect, who so far has provided little information and is reluctant to talk. Students should describe the techniques and the justification (legal and strategic) for their recommendations.

1. Introduce learners to Maria Eugenia Bravo Calderara's poem Cartesianismo which highlights her experience of detention and torture under Pinochet's regime in Chile during the 1970s. Ask learners to discuss their reactions to this poem and the experience of Maria Eugenia Bravo Calderara.

Tips for Teachers: Below is María Eugenia Bravo Calderara's biography, which may be helpful to share with the learners during this exercise. The poem can be found below.

Maria Eugenia Bravo Calderara was a university teacher at the time of the coup in Chile in 1973. With many others she was taken to the National Stadium in Santiago where she was imprisoned and tortured. Her first poems from prison were kept buried in their garden by her mother until they could later be sent to Switzerland in a diplomatic bag. She herself has lived in London since the mid-1970s. Love and exile and the memory of prison are vital concerns in her poetry, some of which has been published in the bilingual volume Prayer in the National Stadium (London: Katabasis, 1992) with English translations by Dinah Livingstone and Cicely Herbert. She often gives poetry readings in England and works in London for the Refugee Council.

2. Ask students to individually research personal accounts of detention and torture (such as memoirs) using the Internet. Encourage students to respond to their research findings through poetry, short stories, and other creative responses. Then ask students to share their findings and responses with the class and discuss. Students may also want to discuss ideas about how they can help people who have suffered from torture.

Se me pierden los días
hondos, blandos, nebulosos,
días que me parecen nunca
existieron:

tiempo de las sinrazones
donde todo lo que era
lleno se consumió en
cenizas dolorosas.

Se me pierden los días,
y al buscarlos en el
calendario,
sucede que tampoco
están allí.

Se me pierden los días,
su sonido, su color,
su resonancia,
y ciertos meses, ciertos
años que no viví.

Sin sus ruedas, sus péndulos,
sus normales rotaciones.
Se me pierden los días.
Innumerables cientos de días.
Y sin embargo, existo.

CARTESIANISM

I lose days
deep, soft, misty days
that feel as if
they never were:

times of unreason
in which everything
that had body dissolves
into ashes of pain.

I lose days
and when I search
the calendar I find
they are not there
either.

I lose days
their sound, colour,
resonance
and certain months, certain
years I did not live.

They lack wheels, pendulums,
normal rotations.
I lose days.
Countless hundreds of days.
Nevertheless I exist.

London, 1982

2. Ask each student to write about the two different sides discussed in the article. Make sure that students address the argument set forth by each side and how each party supports their argument.

3. Once students have completed this written task, ask the students which argument they agree with and why.

4. If time permits, the students can also engage in a debate over the argument. The class can be divided in half to represent each side of the argument. After each group has time to discuss their argument, as well as what supports this argument, have the group choose 2-3 student representatives.

5. The students who have been selected can engage in a verbal debate over the two sides of the argument.

June 25^th is the International Day in Support of Victims of Torture. The day was chosen to commemorate the signing of the Convention Against Torture.

Plan an event in your school or community to commemorate the Day in Support of Victims of Torture, educate the public on the state of the Convention, and raise money to help with rehabilitation programs for victims of torture in your town, city or state. For more information, visit www.hrea.org/feature-events/torture-victims-day.php.

Primetime Torture is a 14-minute film produced by Human Rights First that explores the way torture and interrogation are portrayed on TV. Available through Human Rights First.

Road to Guantanamo directed by Michael Winterbottom and Mat Whitecross (Roadside Attractions, 2006). Part documentary and part dramatization, this film is a first hand account of three British citizens who were held for two years without charge in the American military Guantanamo Bay, Cuba. For more information and to order go to: www.imdb.com/title/tt0468094.

The Torture Question traces the history of how decisions made in Washington in the immediate aftermath of September 11 led to an interrogation policy that, in turn, laid the groundwork for prisoner abuse in Afghanistan, Guantanamo Bay, Cuba, and Iraq. For more information and to order go to: www.pbs.org/wgbh/pages/frontline/torture/view/.

Maquina Condor Art Exhibition: This exhibition combines technology and human rights art through the screens of more than 100 old television sets. Each set displays poems on torture and death that are generated by a sophisticated computer program. This is Máquina Cóndor (The Condor Machine) a disturbing exhibit by a young Chilean artist designed to evoke the system of oppression that reigned in much of South America under Operation Condor.

The following is a list of the 13 major conventions and protocols that address terrorism:

[1] "Fate of McCain Anti-Torture Amendment Now Rests with House- Senate Conference". Human Rights First, July19, 2007.
[2] Priest, Dana. "Detention and Interrogation". Crimes of War: What the Public Should Know. Eds. Roy Gutman, David Rieff, and Anthony Dworkin. New York, NY: W.W. Norton & Company, Inc., 2007:163-164.
[3] Ibid, 160.
[4] Priest, Dana and R. Jeffrey Smith. "Memo offered Justification for Use of Torture". Washington Post, June 8, 2004. July 19, 2007.
[5] UN Action to Counter Terrorism. The United Nations, July 19, 2007.
[6] UN Action to Counter Terrorism. The United Nations, July 19, 2007.
[7] Payne, Caroll. "Understanding Terrorism – Definition of Terrorism". World Conflict Quarterly. 26 July 2007.