U.S. Torture Prosecutions on the Agenda at U.N. Human Rights Council

By Patrick Goodenough | November 9, 2010 | 5:32 AM EST

President George W. Bush's new book "Decision Points" went on sale on Tuesday, Nov. 9, 2010. (AP Photo/J. David Ake)

(CNSNews.com) – The disclosure that former President Bush personally approved the “waterboarding” of al-Qaeda terrorist Khalid Sheik Mohammed is expected to bring calls for torture prosecutions – both in the U.S. and at the United Nations.

Americans can expect to hear more about the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT), a U.S.-ratified treaty that calls for criminal prosecutions for “complicity or participation in torture.”

Bush’s acknowledgment that he endorsed the interrogation method, which simulates drowning, to obtain information from terrorists appears in his memoir, “Decision Points,” which went on sale Tuesday. In an appearance in Michigan last June, the former president said of waterboarding the 9/11 attack mastermind that he would “do it again to save lives.”

Media reports on Bush’s published comments brought condemnation from the National Religious Campaign Against Torture (NRCAT), an umbrella organization comprising more than 290 religious groups in the U.S.

“Former President Bush has admitted to ordering the use of torture. In doing so he has violated U.S. law and international law,” executive director Rev. Richard Killmer said in a statement. “We must establish a commission of inquiry that fully investigates all aspects of the use of torture by the United States to ensure that U.S.-sponsored torture never happens again.”

Asked Monday whether NRCAT supports calls for criminal prosecutions, Killmer replied that a commission of inquiry was its first priority.

“NRCAT is also supportive of an investigation for criminal culpability,” he added. “No-one is above the law and possible violations should be investigated.”

Center for Victims of Torture (CVT) executive director Douglas Johnson also issued a statement following reports of Bush’s comments, saying, “This cavalier attitude by the president who authorized torture in violation of U.S. and international law not only damages our nation’s credibility throughout the world, but also discourages global cooperation to combat terrorism.”

The CVT renewed earlier calls for an independent and non-partisan commission to examine and report on post-9/11 torture and abuse of prisoners.

“Such a commission should be adequately funded and given subpoena power and a mandate to fully examine the facts and circumstances of such abuses and to recommend measures to prevent future abuses,” Johnson added.

Asked whether those measures should include criminal prosecutions, CVT spokesman Brad Robideau replied Tuesday, “It would be presumptuous to assume what type of recommendations an independent, nonpartisan commission investigating the use of torture after 9/11 might make.”

Advice from Cuba, Iran

Reports on Bush’s comments appeared just ahead of the first U.N. Human Rights Council review of the human rights record of the United States. The subject of torture was on the agenda for some of the countries that lined up to criticize and make recommendations to the U.S. at the meeting in Geneva Friday.

State Department legal advisor Harold Hongju Koh addresses a press conference in Geneva on Friday, November 5, 2010 after the U.N. Human Rights Council reviewed the human rights record of the United States. Assistant Secretary of State for International Organization Affairs Esther Brimmer and Assistant Secretary of State for Democracy, Human Rights, and Labor Michael Posner look on. (Photo: US Mission Geneva/Flickr)

Addressing the panel of senior State Department officials present, Iran’s delegate said the U.S. should invite the U.N. human rights experts to investigate Guantanamo and then “put on trial its gross violators of human rights and its war criminals.”

“Put on trial the perpetrators of torture, extrajudicial executions and other serious violations of human rights committed in Guantanamo [and elsewhere],” the Cuban envoy advised the American delegation.

Hours after they and representatives of other states including Russia, Venezuela and Libya took the U.S. to task over detainee torture allegations and called for those responsible to be punished, the State Department officials were asked during a press conference about Bush’s waterboarding assertion.

“Waterboarding is forbidden,” replied State Department legal advisor Harold Hongju Koh. “This president of the United States said that torture and cruel and inhuman or degrading treatment will not be used going forward with regard to interrogation practices. So there has been a clear turning of the page.”

Koh was then asked whether the U.S. was “still considering the possibility of legal investigations and federal prosecution of those who might have ordered such a practice in the past.”

He recalled that Attorney General Eric Holder in 2009 had referred the issue of so-called enhanced interrogation techniques to veteran special prosecutor John Durham of Connecticut.

“Those investigations are ongoing,” Koh continued. “The question is not whether they would consider it – those discussions are going on right now.”

Holder in his Aug. 2009 announcement said Durham would carry out “a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”

No timetable was announced back then, although Holder in a speech last June said that Durham was nearing the end of his preliminary review “and will be making some recommendations to me.”

International obligations

Although Holder in his announcement referred to federal law, Koh in Geneva on Friday also invoked international law.

He said the administration’s stance was not a policy choice but a legal obligation, noting that the administration “defines waterboarding as torture as a matter of law under the Convention Against Torture.”

The CAT, which the U.S. ratified in 1994, calls on states to criminalize torture and prosecute “complicity or participation in torture.”

“Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature,” it reads.

The U.N. Human Rights Council has an expert – in U.N. jargon, “special rapporteur” – on torture, and last week the post changed hands.

Juan Mendez of Argentina was appointed this month as the U.N. Human Rights Council’s special rapporteur on torture. When this 2005 picture was taken, he was serving in a different capacity, as the secretary-general’s special advisor on the prevention of genocide. (UN Photo by Mark Garten)

The incoming rapporteur, Juan Mendez from Argentina, is a former president of the International Center for Transitional Justice (ICTJ), an organization calling for accountability for U.S. rights abuses during the war on terror, including prosecutions of those responsible.

A November 2009 ICTJ briefing note on the issue argues that it is not sufficient to hold accountable “only those who carried out orders or whose actions went beyond the stated government policy,” and states that “prosecutions should focus on policy-makers and high-level officials.”

“It stands as an incredibly distorted and hypocritical position for the United States to push for accountability everywhere around the world, and not to want to make its own state agents accountable when they have committed very serious crimes like torture,” Mendez said in a video statement last year.

In his new U.N. role, Mendez succeeds Austrian lawyer Manfred Nowak, who on the day Obama took office called for Bush and former defense secretary Donald Rumsfeld to be prosecuted for alleged abuses at Guantanamo Bay, citing U.S. obligations as a signatory to the Convention on Torture.

As he left his U.N. post last week, Nowak was asked by Germany’s Deutsche Welle broadcaster whether he was disappointed the Bush and Rumsfeld had not been prosecuted yet.

“I have a certain understanding that President Obama did not want immediately to really get into such a conflict with the Republicans and the former government,” Nowak replied.

“But a thorough investigation would be the least that is required from a new president who really campaigned for change and a new ethical behavior in international relations and toward people under his jurisdiction.”

Nowak reiterated the view that “the Obama administration is under an international obligation to deal with the past.”

Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow