The blood doesn't wash off

Comment by Morton Sklar, Toronto Globe and Mail, 10 November 2003

THE CASE of Maher Arar has directed a not-very-flattering spotlight on the U.S. government practice known as “rendition to torture.” This practice involves sending suspected terrorists apprehended in the United States to third countries where they can be interrogated using extreme tactics not permitted within U.S. borders.

According to The Washington Post, the U.S. began using this highly questionable practice in the aftermath of Sept. 11, 2001, as a means of defending the country against further terrorist attacks. It was believed that information about terrorists' future plans might be made more readily available using something other than traditional lawful techniques.

The first Post article to blow the whistle on the practice, published last December, suggested that upwards of 100 suspected terrorists had already been sent to countries such as Syria, Afghanistan, Pakistan, Egypt, Jordan, and Morocco for interrogation using “stress and duress” methods, and quoted U.S. officials as confirming that “thousands” more had been arrested and were being held “with U.S. assistance” in “countries known for brutal treatment of prisoners.”

Maher Arar's is the first case where one of the alleged terrorists subjected to this treatment has been freed, and is in a position to confirm the existence of a practice that so brutally violates basic principles of human rights and the rule of law.

Rendition to torture is only one aspect of a much broader set of repressive practices that have been set in motion by the U.S. government with the ostensible object of preventing terrorism. These practices include the detention in a U.S.- operated military base in Guantanamo Bay, Cuba, of more than 600 individuals captured during the armed conflicts in Afghanistan and Iraq, and the arrest and longterm detention in the United States without criminal charges of more than 1,200 aliens from Middle Eastern and Southeast Asian nations who are suspected of having terrorist ties.

Tied in with these policies is President George W. Bush's plan to prosecute a number of suspected terrorists, designated as “enemy combatants,” in military tribunals instead of regular criminal courts, where due process protections, and even access to lawyers and to judicial appeals, are substantially reduced.

U.S. officials attempt to justify these extrajudicial policies as necessary to defend our country against the threat of terrorism, and to keep the extent of our knowledge of terrorist activities secret. Overlooked in the name of expediency, self-defence, and national security, however, is that major human-rights abusers, including those from countries such as the former Soviet Union, China, Burma, and Sudan, which the U.S. government so severely and correctly condemned in the past, often make very similar arguments to justify their unlawful actions.

Also conveniently ignored is the fact that our country claims to be intervening in Afghanistan and Iraq in order to end repressive regimes and to promote democratic reform while, at the same time, it is apparently using very similar repressive tactics itself. Rendition to torture is hardly the best model to use to encourage the promotion of human rights in countries such as Syria. Is it any wonder that many of the people we are trying to help abroad, as well as many of our allies, are becoming increasingly skeptical of our motives?

The U.S. officials (and, in the case of Mr. Arar, the Canadian officials) who may have been implicated in these practices need to understand that torture and other major human-rights abuses are violations of law, prohibited under both domestic statutes and international treaty obligations, and can subject individual perpetrators to both criminal and civil liability. Rendition to torture, for example, violates the absolute prohibition against governments inflicting severe pain and suffering under any circumstances, as well as the specific prohibition against sending anyone to a situation of torture, which is incorporated in the international treaty referred to as the Convention Against Torture.

Civil and criminal laws implementing that treaty have been adopted in both the United States and Canada. This means that anyone engaged in torture, or complicit in its use, even if its purpose is to obtain information that would stop terrorist acts, is subject to domestic criminal prosecution.

Since torture also is included in the actions classified as “crimes against humanity” in the statute of the recently established International Criminal Court, it also may be possible to bring criminal charges against those responsible for these abuses in that tribunal.

Canada is a party to the International Criminal Court, though the U.S. is not. But cases still can be brought before the ICC, even against citizens of nonparty states, based on the citizenship of the victims of their abuse, or on where the violations took place.

The chances that the governments of the U.S. or Canada would allow criminal prosecutions to take place against those responsible for rendition to torture practices, either domestically or at the international level, are extremely remote, to be sure.

But the filing of criminal complaints (and civil liability lawsuits) by Mr. Arar and others may be a good way to focus attention on these types of abuses, and to stimulate the public to demand answers from their policymakers. Is engaging in torture and other major human-rights violations the best way for Western democracies to promote human rights, democracy, and the rule of law in the developing world?

Hardly. Nor does it represent an effective strategy for reducing the threat of terrorism.