By Jonathan Power
Right now, 47 years ago to the day in the autumn of 1975, the corridors of the UN in New York were abuzz with a small army of Amnesty International staff members lobbying countries to agree on a Declaration Against Torture.
The passage of international law to outlaw torture from idea to a convention to a treaty is one of Amnesty’s most important success stories. Amnesty set out to make torture “as unthinkable as slavery”, as its then chairman, Sean MacBride, said. In 1984 Amnesty reached its ultimate goal—the adoption by the UN of a legally binding treaty against torture. No other organisation can claim as much credit as Amnesty can.
Quite soon after, the Convention Against Torture was ratified by most members of the UN, including the US of the ultra-conservative president Ronald Reagan and the UK of rightist Prime Minister Margaret Thatcher. Russia and China also quickly ratified the treaty.
In 1999, in the UK, for the first time anywhere, a high court decided that sovereign immunity must not become sovereign impunity and that under the UN convention, the ex-president of Chile, Augusto Pinochet, then detained unexpectedly in London, could be prosecuted for torture.
It had been the coup in Chile in 1973 carried out by General Augusto Pinochet that had given Amnesty the boost it needed for its campaign to gain traction.
At that time, most Third World countries were highly suspicious of “Western” critiques of their human rights behaviour. But the deposed and murdered leftist president of Chile, Salvador Allende, was a heroic figure, and they suspected, correctly, that the US was behind the overthrow.
They willingly made use of Amnesty material to blacken Pinochet’s name. Communist Eastern Europe jumped in too. Bulgaria, not known for its attachment to political liberty, singled out a report by Amnesty on Chile, and the Soviet Union referred to testimony submitted by Amnesty.
Ancient Rome tortured the early Christians. The Church, repelled by what had happened then, for more than a thousand years used its influence to ensure that torture was abolished in Europe. In 1215 the Lateran Council condemned torture as cruel. Tragically, as a tool of the Inquisition in the fifteenth century, the Church brought it back, particularly in Spain.
For its part, from the fifteenth century onwards, England set its face against the use of evidence produced under torture. (The US shares its common law with England.) The judges who presided over these decisions pointed to the inherent weakness of the evidence in confessions procured by torture since a person subject to unbearable pain will say anything to stop it. Only the Special Court of the Star Chamber could issue torture orders, but in 1640 the court was abolished, and since then, no torture warrant has been issued in Britain.
In Prussia, torture was abolished in 1740, in France in 1789 and in Russia in 1847. In the US in 1791, Congress passed the eighth amendment to the constitution forbidding “cruel and unusual punishment”.
Torture returned with a vengeance during the twentieth century—in Stalin’s Soviet Union, Franco’s Spain, Hitler’s Germany and Mussolini’s Italy.
Despite the UN’s Convention Against Torture, torture has not gone away. Amnesty says it and ill-treatment inflicted by state agents still goes on in over 100 countries.
Eight years ago came the torture bombshell of modern times. A report of the US Senate criticized the Central Intelligence Agency (CIA) under President George W. Bush of conducting torture on Al Qaeda suspects.
According to the Senate Intelligence Committee’s chairwoman, Dianne Feinstein, the 6,000-page report was “one of the most significant oversight efforts in the history of the US.”
The report shows that the CIA did not provide accurate information to Congress and also provided misleading information. The report also concludes that the CIA impeded effective White House oversight and decision-making. While the report was being prepared, the CIA penetrated the Senate Committee’s computers, arousing the fury of its members.
President George W. Bush and Vice President Dick Cheney were deeply involved in initiating the torture program. The Administration claimed that the waterboarding 183 times (the dipping of the head in water so that the prisoner feels he is drowning) of Khalid Sheikh Mohammed, the 9/11 mastermind, led to the foiling of a terror plot against Los Angeles’s Library Tower. But the Senate report concludes that the information could have been learnt without using torture.
The report’s primary focus was on discerning whether the use of torture gained valuable intelligence. It concluded that it did not.
When President Barack Obama was elected, he swiftly moved to ban waterboarding and other torture techniques. However, he refused to authorize a full, in-depth Justice Department investigation which, if it had taken place, would doubtless have pointed the finger at Bush and Cheney.
Most of the report, these many years later, remains under wraps, with only the briefest of summaries allowed to circulate. A moment’s reflection leads one to ask why no one succeed in getting a court order to stop what Bush was ordering since the torture practised was clearly against the Eighth Amendment.
Second, why did the US media hardly ever draw attention to the fact that the US was breaking its solemn commitment not to use torture when it had some years before ratified the UN’s Convention Against Torture?
In the UK, it is alleged that Prime Minister Tony Blair—Bush’s principal ally during the time of Al Qaeda and the war in Iraq—accepted torture. The UK was not accused of conducting torture on its own soil but of sending those, it wanted vigorously interrogated to countries which sanction torture.
In 2005 the UK government argued unsuccessfully before the Supreme Court for the right to use torture. This was the first time in over 200 years that a government had attempted to make it legitimate. Not even when Nazi prisoners were captured was torture used, it being judged that it wouldn’t reveal much more than what sophisticated interrogation techniques could.
In his book “The Rule of Law”, published twelve years ago, Tom Bingham, the former senior law lord on the Supreme Court, wrote, referring to the Blair government, that “it cannot be said that the UK has shown the implacable hostility to torture that should be expected from a state whose courts led the world in rejecting it”.
Today another ratifier of the Convention Against Torture, Russia, has been accused of committing war crimes, including torture, during its war with Ukraine. Both Amnesty and the International Criminal Court have teams on the ground investigating. The Ukrainian military has also been accused of similar atrocities, albeit on a much smaller scale. Prosecutions are still awaited for the torture allegedly used by the Ukrainian police and militia against demonstrators in the Maidan demonstrations of 2013.
But the US and Britain are in no position to complain or demand that Russians be prosecuted. Leave that to others with cleaner hands—the Scandinavians, the Costa Ricans, the Japanese, and the Canadians come to mind. When it comes to torture and war crimes, their own house has not been in order for very long. The US, the UK and France, the Western members of the Security Council, must face up to their inconsistencies if the world is truly to make the progress that was promised by all at the UN 47 years ago.
About the author: The writer was for 17 years a foreign affairs columnist and commentator for the International Herald Tribune, now the New York Times. He has also written dozens of columns for the New York Times, the Washington Post, the Boston Globe and the Los Angeles Times. He is the European who has appeared most on the opinion pages of these papers. Visit his website: www.jonathanpowerjournalist.com