Abstract
Since the end of the Great Wars, the international community has worked double time to improve the human rights conditions of the public. Throughout the conflicts that transpired for years, citizens were persecuted in the most horrific means in order to gain information or punish the innocent. Several important conventions were established after the war to fight against these torture incidents such as the United Nations Convention Against Torture and the Geneva Convention. Many states are signatories of these Conventions; however, it is a question if these conventions can still be applicable today especially as several conflicts continue to prevail today. Some even question if these conventions are applicable to prisoners considering the crimes these prisoners are suspected to have done.
In the 2003 War on Terror, the issue regarding the Abu Ghraib Prison in Iraq has triggered immense attention due to the use of torture by the US forces to detainees. The US government deny such accusations and stress that these torture cases are isolated but critics condemned the US government for its abusive policies in their detention centers as investigations reveal that the use of torture was approved by the US government’s officials, especially for interrogation on Prisoners of War. Considering the extent of the human rights violations committed through torture, this paper argues that The Abu Ghraib torture and abuse cases showcases that the UNCAT does not have the capacity to stop the continuous onset of torture as citizens of signatories themselves violated the very premise of the convention even if the victims were prisoners suspected of various crimes. In order to analyze the convention against torture and the situation at Abu Ghraib Prison, this paper will be divided into three parts: the nature of the international conventions against torture, the background of the Abu Ghraib Prison and the application of the international conventions against torture in the Abu Ghraib issue.
Convention Against Torture: The Issue of Abu Ghraib Prison
Since the end of the Great Wars, the protection of human rights became one of the fundamental issues the international community first tackled and established in international law. In past conflicts, citizens – especially in autocratic states – were persecuted in the most horrific means to gain information or punished despite their innocence. One of these forms of persecution – torture - was immediately outlawed in various international conventions with many nations signing up as signatories to ensure that torture is not practiced in their territories. However, in recent years, the adherence of signatories to international conventions such as the United Nations Convention Against Torture is questioned as cases like the Abu Ghraib Prison shows that torture is still practiced worldwide In order to analyze the convention against torture and the situation at Abu Ghraib Prison, this paper will be divided into three parts: the nature of the UN Convention Against Torture, the background of the Abu Ghraib Prison and the application of the UNCAT in the Abu Ghraib Issue. This paper argues that: The Abu Ghraib torture and abuse cases showcases that the UNCAT does not have the capacity to stop the continuous onset of torture as citizens of signatories themselves violated the very premise of the convention even if the victims were prisoners suspected of various crimes.
The practice of torture can be traced back since the time of the Greek and Roman Empires; but international condemnation towards this practice only occurred at the end of the Second World War. According to Lippman (1994), the international community was motivated to act against torture after the deaths of thousands of non-Germans and prisoners of war because of the Nazis. The United Nations itself cited in its Charter that it was established to ensure the protection of human rights worldwide. The Universal Declaration of Human Rights further iterated the international community’s goal to stop all forms of human rights violations and under Article 5, no person shall be subjected to torture or any form of degrading treatment or punishment. Prisoners are also granted these protections under the Standard Minimum Rules for the Treatment of Prisoners in 1957, indicating that all forms of cruel and inhuman treatment or punishment would not be tolerated. However, torture remained a practice to some regimes as a means to stop opposition as seen in Algeria, Ireland and the Soviet Union. Groups like Amnesty International launched several campaigns to advocate the stop of torture, reporting how citizens and political opposition were tortured as a means to punish these people and gain information. Medical organizations had also supported the condemnation to torture such as the 1975 Declaration of Tokyo by the World Medical Association.
The United Nations Convention Against Torture is the successor to the 1975 UN Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN Declaration on Torture). The UN recognized that the Declaration was not effective in stopping torture of detainees and understood Amnesty’s recommendation in creating a legally-binding Convention that would condemn torture. Amnesty reported that from 1974 to 1979, they have intervened in 1,143 individual cases of torture in thirty-two countries. Victims themselves showed the international community the necessity to make such Convention was they exhibited signs of both physical and mental impacts even after the torture was stopped. In response to this issue, the UN General Assembly convened in 1977 and slowly drafted the legally-binding Convention against Torture with the assistance of the Commission on Human Rights. The Convention was adopted on December 10, 1984 which coincided with the thirty-sixth anniversary of the UN Declaration of Human Rights.
Under the UNCAT, torture is defined as an “Act by which severe pain or suffering, whether physical or mental, is intentionally inflicted.” Under the same Article – Article 1 –, torture is also done in order to obtain information, punish or intimidate persons and gain a confession. Many experts indicated that the UNCAT’s definition is only restricted to the acts committed by public officials or people acting on an official capacity. The Convention did indicate that the official may also be accused of torture if they consented on the practice. The subsequent parts of the Convention indicated that each signatory is expected to establish and enforce laws that would prevent torture in their respective jurisdictions and ensure that no state will invoke a justification for its practice. Signatories are also prevented from returning or extraditing persons where they will be subjected to torture and torture itself must be listed as an offense under their respective criminal laws. Investigations and proper jurisdiction must also be done by signatories, especially if reports of torture have been committed under its jurisdiction. Article 16 highlights which acts of cruel, inhuman or degrading treatment which does not lead to torture. Signatories are also expected file reports regularly to a Committee Against Torture which would review a signatory’s efforts on stopping torture and recommend reform under Articles 20 to 22 .
Although the UNCAT was enacted and signed by various countries – including the United States-, several reports of torture are still broadcasted especially those done by signatories. The Abu Ghraib Prison or Baghdad Central Prison is a prime example to these reports, especially after the 2003 invasion of Iraq. According to Mastroianni (2013), the prison was made in the 1950s in the request of the Iraqi government to British contractors to make a prison good for 15,000 inmates. The complex is divided into several camps to house specific prisoners. In Camp Ganci, for example, the tent camp is surrounded by concertina wire and can contain 5,000 to 5,500 prisoners accused or charged with civil crimes. Camp Vigilant is where 750 to 1,000 prisoners of the Saddam Fedayeen. There is also a site called the “hard site”, the brick-and-mortar facility that is used by the government for hardened and convicted criminals. There are also facilities meant for the use of mentally ill, juveniles, women and those suspected of crimes and they are Tiers 1A and 1B .
Under the regime of Saddam Hussein, the prison was the site where thousands of political opponents were tortured and executed. According to Brown (2009), there were execution scaffolds used for hanging around the prison and there were incinerators located around the barracks. Throughout the Hussein regime, thousands of prisoners brought to the prison did not return back home alive. When the Hussein regime fell in April 2003, the US Coalition Forces took over the entire prison complex and renovated it for their use. When the forces arrived, they saw that the prison complex was a torture chamber filled with the most gruesome marks of such violence under the Hussein regime. There were wild dogs going in the premises to dig up the remains of prisoners haphazardly buried in the complex and soldiers themselves remarked that it was a “haunted” and “desert bowl of misery” as they looked around the complex to have it retrofitted for use. The entire complex was divided by the US-led coalition in order to hold prisoners of war and high-value detainees. The Iraqi government took control over the Hard Side for their convicted criminals while the rest were under US control. The US military also used the complex as a forward operating base for their personnel and supplies. They also used some parts of the complex to interrogate suspected Al Qaeda supporters and fighters .
Despite the retrofitting of the entire complex, the conditions in the Abu Ghraib Prison remained deplorable. According to Strauss (2005), innocent Iraqis, common criminals, and insurgents were detained in prison and even women and children were rounded up by the coalition forces. By October 2003, Abu Ghraib had 7,000 detainees while watched by 90 personnel from the US 800th Military Police Brigade. Considering the numbers of these forces, they were ill-equipped to handle that much volume of detainees and the complex is always bombarded by mortar raids, making it vulnerable to destruction and disrepair. While these conditions continued to grow worst, there were practices by the 800th Military Police Brigade that made the living conditions of prisoners and innocent civilians detained in the camp worst. From October to December 2003, abuse and torture were photographed throughout Abu Ghraib Prison. Abuse against prisoners and detainees included sexual degradation such as simulated fellatio and even rape. There were allegations of humiliation and army personnel frightening teenagers to urinate on themselves. One photograph even showed a smiling PFC holding a leash attached to one of the abused detainees. Physical abuse and torture were also done towards detainees as soldiers poured phosphoric liquid on them and beating them until they were unconscious.
The abuse would not have been revealed if not for the bravery of Specialist Joseph Darby who slipped a copy of the photos to the Army’s Criminal Investigation Division . Almost immediately, criminal investigations were launched and another investigation ordered by the US Secretary of Defense under Major General Arturo Tagaba. According to Amnesty International (2006), as the investigations were taking place, images of the torture and ill-treatment done to the inmates were released to the media, causing outrage to ensue against the US forces handling Abu Ghraib. When Major Tagaba reported his findings in May 2004, he found the Coalition Forces guilty in the systemic and abuse of detainees in Abu Ghraib and the soldiers have committed “egregious acts and grave breaches of international law at Abu Ghraib.” The report also included evidences and written confessions from the detainees themselves .
With visible evidence of the use of torture towards prisoners of war and inmates at Abu Ghraib, it is clear that the UNCAT was unable to protect the prisoners of Abu Ghraib because the signatory itself violated its major premises. Adams, Balfour and Reed (2006) indicated the US ratified the UNCAT but it had several reservations when it comes to several stipulations. The US Senate insisted on a narrower definition of torture which is different form the UNCAT. This is listed in US Code’s Section 2340 where it is cited that torture must involve pain which is difficult to endure and cause significant psychological harm for a significant span of time. Mental harm would then include threats of infliction and death . Considering this definitions, Garcia (2009) indicated that there are several means to overturn this definition of torture and still allow torture to occur and not violate the CAT. The definition also did not include all acts of mistreatment . Garcia (2009) also added that under the CAT, torture should not be done in any way, especially while on a state of war or a threat of war. Article 7 also indicated that any person that is brought to questioning should be guaranteed fair treatment throughout the proceedings and should they be placed within custody, they will be granted safety . The UNCAT (1987) also included in Article 10 that their law enforcement personnel should be trained and educated regarding the prohibition of torture and each case is reviewed correctly by an impartial investigation as noted in Article 12 .
This ambiguity of the CAT and its lack of capacity to stop the onset of torture is clearly seen in the situation in Abu Ghraib. Adams, Balfour and Reed (2006) cited that in the investigations of the Department of the Army under AR 15-6 by Lieutenant General Anthony Jones, Major General George R. Fay (Fay Report) and Major General Antonio Taguba (Taguba Report), they indicated that there was indeed a lack of education and awareness of the military personnel in Abu Ghraib, violating Article 7 of the UNCAT. This lack of education regarding torture prohibition triggered the lack of discipline and the occurrence of torture towards the victims. They also cited that the military companies that were brought to the complex to watch and guard the detainees were not suited for that type of mission. The 372nd Military Police Company, for instance, is trained to handle prisoner-of-war missions; but they were not trained to handle insurgents and monitor their movements. The Fay Report even included that the abuse and torture done by the 205th Military Intelligence Brigade, which handles interrogation of these detainees were not officially sanctioned and done in an individual basis. The Schlesinger Report released in August 2004 also indicated that there were deficiencies when it came to the command and control over the infantries tasked to handle the entire complex .
Several scholars – as cited by Strauss (2005) – also pointed out that the fact the US had a different view on the definitions of torture, the UNCAT was unable to challenge the US’ take on their actions against prisoners and detained suspects. Experts argued that the US did not consider the protections given to prisoners under various international conventions and even the liability of Americans who have committed torture case. The Bush Administration did not even condemn the use of such unjust interrogation tactics that can already go at par as torture in international law. The Bybee memo and other Administration memos which were released in the War on Terror period implicated that what happened in Abu Ghraib was a proof that the Bush administration is ready to do whatever it takes to win the war even if it would entail torture against victims .
Every person has the right to be protected from torture and abuse, even if they are prisoners suspected or convicted of the crimes they were accused of committing. Prisoners are also human beings and whether or not they have been convicted or on trial for crimes they were accused of, they deserve to be treated fairly without fearing the possibility of being tortured or abused in any way. The case of Abu Ghraib emphasized that the UNCAT needs to be reformed because it does not completely protect the people from torture, especially prisoners who have limited protections from such violence. If the signatories themselves deny the very premise of the UNCAT, it should be clear that the UNCAT is not deemed as a critical element for the protection of human rights. Unless reform is done to change the definition and clauses of the UNCAT, cases like Abu Ghraib will continue to persist and put many lives in danger.
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