The occasion of the annual international day for victims of torture on 26 June would seem a particularly pertinent time for the USA to begin to end this remedy and accountability vacuum.27It is now seven years since President Bush marked this date in 2003 with a statement that amounted to rank hypocrisy:
“Notorious human rights abusers… have long sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors...The United States is committed to the worldwide elimination of torture, and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment… The suffering of torture victims must end, and the United States calls on all governments to assume this great mission.”
Three months earlier, Khalid Sheikh Mohammed had been subjected in secret US custody 183 times to the torture technique known as water-boarding. The secret detention program had been authorized by President Bush.
Without a doubt, there has been a positive change in tone on human rights and engagement with the international community under the Obama administration. The fact that the CIA program such as it was under the Bush administration is now believed to have been ended, and the agency’s use of “enhanced” interrogation techniques stopped, is welcome. The fact is however, there has been zero accountability and remedy for the violations, including crimes under international law, committed under the program.
Responding to the recent events in his case, Maher Arar has told Amnesty International of his view that: "This Supreme Court decision, along with lower court’s rulings, essentially gives the green light to the US administration to engage in torture without any fear of ever being prosecuted." Similar to what the administration has said in other litigation, and what the White House has stated in its May 2010 National Security Strategy, the Justice Department’s brief to the Supreme Court on the Arar case asserted that the case did “not concern the propriety of torture or whether it should be ‘countenanced’ by the courts.” Torture, it said, “is flatly illegal and the government has repudiated it in the strongest terms… The President has stated unequivocally that the United States does not engage in torture”.
Amnesty International has welcomed the promises made by the Obama administration that it will not torture. This promise is not enough, however. The USA is obliged under international law not only to prevent those who act on its behalf from committing, participating in, tolerating, acquiescing in, or otherwise being responsible for any act of torture or other cruel, inhuman or degrading treatment, as defined under international law – as well as other human rights violations such as enforced disappearance, secret detention, and arbitrary detention – but to investigate and hold accountable those responsible for authorizing and carrying out such violations in the past, including by bringing those responsible for crimes under international law to justice.
In its National Security Strategy, the administration asserts that “We are working within the broader UN system and through regional mechanisms to strengthen human rights monitoring and enforcement mechanisms, so that individuals and countries are held accountable for their violation of international human rights norms.” The USA’s failure to ensure accountability and remedy for its own conduct is leaving its positive words on torture ringing somewhat hollow, as similar words rang hollow under the previous administration.