Concern about observers entering its prisons puts America at odds with European allies again

By Oliver Burkeman, The Guardian (London), Thursday 25 July 2002

The United States opened a new rift with its European allies yesterday about global standards of justice and human rights by threatening to block an international convention against torture which might allow foreign observers to visit US jails and the Guantanamo Bay naval base, where suspected al-Qaida fighters are held.

Campaigners accused the White House of sabotaging the optional protocol, which has been at the negotiation stage for the past 10 years, and which they argue is essential for enforcing the landmark UN anti-torture convention, passed in 1989.

The protocol aims to establish a system of regular visits undertaken by independent and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment and punishment.

But the US fears that it would contravene the cherished constitutional principle of states' rights—the legal freedoms retained by individual states rather than being ceded to the federal government—by giving international observers a Washington-backed mandate to enter state prisons regardless of local penal laws.

The US called for a vote on their putative amendment to the protocol, requesting new talks on the current text and the process connected with it. It remained to be seen whether the other members of the UN economic and social council, which was preparing to vote on the protocol, would agree to the request.

But one European diplomat, speaking on condition of anonymity, said such a move would end in defeat. It's pretty clear that anything the US could live with would be too weak for the others, the diplomat said. The US knows they will not get enough support for this.

Human Rights Watch said such an amendment would be the kiss of death for the protocol. By sending this treaty back for more negotiations, the United States would be playing into the hands of countries such as Cuba and Iran, which want to block international scrutiny of human rights, it said.

The disagreement comes less than a fortnight after the security council struck a compromise on US demands that its peacekeepers be granted immunity from prosecution by the new international criminal court, which came into force on July 1 with the power to prosecute war crimes and crimes against humanity.

The US eventually agreed to a resolution exempting peacekeepers from states which have not ratified the treaty establishing the court - including the US—but only for as long as the security council chose to renew their immunity. However, some observers have argued that the council exceeded its powers because the wording of the resolution includes a presumption that immunity will be renewed. In effect, they argue, the council has altered an international treaty without the consent of its signatories.

The deadlock on the torture convention perhaps underlines the White House's hostility to the concept of an international justice regime more explicitly than did its objections to the criminal court.

The US government could avoid having to comply with the convention by cooperating with the forthcoming Ecosoc vote, but refusing to ratify the document in the UN general assembly.

If the US alters the convention, any changes will affect all the states which eventually ratify it.

A vote against the optional protocol would be a disastrous setback in the fight against torture, said Martin McPherson, head of Amnesty International's legal programme.

To reopen negotiations at this time could only lead to watering down the text, so that it will fail to fulfil its aim—to prevent torture and ill-treatment still so prevalent around the world.