UN Special Rapportuer on Torture Manfred Novak's stinging rebuke to the Obama administration this week that it is specifically obligated by the United Nations Convention against Torture to prosecute Bush administration lawyers who drafted torture policies and approved torture practices such as water boarding, is interesting in more ways than one.
Abusive regimes and double standards
Though Novak is not, by any means, the first of the UN jurists to call the US to account for its human rights violations, this call is a good answer to abusive regimes who love to justify their own mockery of the law by complaining bitterly that superpower regimes apply different rules of engagement to itself as opposed to other, (and dare we say it, lesser) nations. On the one hand, there is no doubt that this argument is eminently applicable in international realpolitik and that indignation (if not fury) in full measure is quite understandable in this context. Thus, we are entitled to look askance at British or US politicians when they pontificate on holding the Sri Lankan head of state responsible on charges of 'genocide' in relation to the current conflict while quite airily ignoring the legal definitions of the term 'genocide' or indeed, the application of this argument to their own heads of government in relation to actions in Iraq and Afghanistan.
Misapplied use of the same yardstick
But, on the other hand, the mistake is made when common or garden path critics argue that the UN jurists also conform to this hypocrisy by ignoring violations of 'developed' nations while castigating 'developing' nations for their sins. Therefore, (as they are fond of maintaining), their scrutiny also needs to be mocked at and disregarded. This has been, for example, one of the most convenient bludgeons by which the Sri Lankan government and its assorted cheerleaders have managed to beat down implementation of the many recent recommendations made to the government by the United Nations Human Rights Committee as well as by the United Nations Special Rapportuers to improve the country's domestic legal regime.
These recommendations did not relate to anything so grandiose as, (to be irresistibly caustic), stopping the war for example. On the contrary, they related to basic reforms such as in ensuring good investigations and prosecutions into disappearances of persons or practices of torture and enacting laws such as a Freedom of Information Act and a Contempt of Court Act. And it must be quite clearly articulated that, just as much as advocates in Sri Lanka have argued that reforms to our laws and practices are necessary in order to prevent abuses not only during active conflict but also during purportedly normal times, historic organisations such as the American Civil Liberties Union (ACLU) in the US have been proceeding on the same difficult if not painful path.
Complicity of US state lawyers in torture
practices
The nature of current debates in the US as to whether senior Bush lawyers ought to be prosecuted is therefore illustrative for us as well. It is somewhat little known that the Obama administration's release of CIA memos authorizing enhanced interrogation techniques justified by Justice Department lawyers was propelled by a Freedom of Information lawsuit brought by the ACLU and that opposition was manifest to the release of the memos not only (understandably) by the CIA itself but also from elements from within the new administration. The release was ultimately a compromise and its impact softened by officials who have declared that CIA interrogators who acted in reliance on the memos would not be prosecuted. Predictably, the opposition to the affording of such immunity has become strident. As Novak put it quite plainly, US Justice Department officials who justified and legitimized torture are guilty of 'complicity or participation' to torture and should therefore, be held responsible under the UN Convention against Torture.
The failure of Sri Lanka's legal system
The similarities are quite bizarre in a sense. In a February 2008 report to the United Nations following a mission visit to Sri Lanka, Novak concluded that torture was "widely practised' (as manifested in several diverse locations in the country but not as a systematic practice) in Sri Lanka and called for many remedial measures to be implemented all of which have been blithely ignored by the government.
Among these measures were that detainees should be given access to legal counsel within twenty-four hours of arrest, with reference particularly to persons arrested under ER; that Magistrates should routinely conduct independent medical examinations in accordance with the Istanbul Protocol even in the absence of a complaint from a detainee; that all allegations of torture and ill treatment be promptly and thoroughly investigated by an independent authority; that confessions made by persons in custody without a presence of a lawyer and not confirmed before a judge, should be inadmissible; and that the burden of proof should shift to the prosecution to determine the voluntary nature of the confession.
Ensuring basic
safeguards for
protection
Surely these are not extraordinary protections but the very basic of safeguards that ought to be in place? The failure of the legal system to handle even ordinary crimes has been acknowledged across the board, including by a committee headed by the former Attorney General which suggested various reforms to the criminal justice system, the most important of which have again, not been implemented.
There was a time when our foreign policy was handled cannily by the likes of former Minister Lakshman Kadirgamar who refused to bow to 'international bullying' but who yet realised the strategic importance of belonging to the community of nations. These shrewd strategies are now cast to the winds with the result that we box wildly on all fronts, disproportionately reacting to constructive criticism with the same petulant fury with which we react to malicious propaganda.
Undoubtedly this is not the way that our engagement with the world, (or indeed, our engagement with ourselves), needs to be manifested. |
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