Global Policy Forum

By Thalif Deen

No country can justify torture, the humiliation of prisoners or violation of international conventions in the guise of fighting terrorism, says a U.N. report released here. The 19-page study, which is likely to go before the current session of the U.N. General Assembly in December, does not identify the United States by name but catalogues the widely publicised torture and humiliation of prisoners and detainees in Iraq and Afghanistan by U.S. troops waging the so-called "war on terrorism."

The hard line taken by the United Nations comes amidst the controversial appointment of a new U.S. attorney general, who has implicitly defended the use of torture against ''terrorists'' and ''terror suspects''. On Wednesday, U.S. President George W Bush named White House legal counsel Alberto Gonzales as attorney general to succeed John Ashcroft, who announced his resignation last week. In a now-infamous memo to the White House in January 2002, Gonzales argued that captured members of the former ruling Taliban regime in Afghanistan were not protected under the Geneva Conventions, which stipulate the treatment of prisoners of war (POWs). The United States has signed the Geneva Conventions. The same policy was applied to prisoners in Abu Ghraib prison in Baghdad who were tortured and humiliated by U.S. troops following the U.S.-led invasion of Iraq in March 2003, raising outrage among human rights activists and other people worldwide.

The U.S. Army Criminal Investigation Command is now prosecuting several U.S. soldiers on criminal charges, including involuntary manslaughter, for their treatment of prisoners. Gonzales has also described international conventions governing prisoners of war, including the Geneva Conventions, as ''obsolete.'' According to the author of the 19-page U.N. report, 'Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment', ''The condoning of torture is, per se, a violation of the prohibition of torture." The study, by U.N. Special Rapporteur on Human Rights Theo van Boven, points out that ''legal argument of necessity and self-defence, invoking domestic law, have recently been put forward, aimed at providing a justification to exempt officials suspected of having committed or instigated acts of torture against suspected terrorists from criminal liability.''

But, Van Boven says, ''the absolute nature of the prohibition of torture and other forms of ill-treatment means that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as justification for torture.'' Von Boven said he has received information ''on certain methods that have been condoned and used to secure information from suspected terrorists.'' He says these include, ''holding detainees in painful and-or stressful positions, depriving them of sleep and light for prolonged periods, exposing them to extremes of heat, cold, noise and light, hooding, depriving them of clothing, stripping detainees naked and threatening them with dogs. The jurisprudence of both international and regional human rights mechanisms is unanimous in stating that such methods violate the prohibition of torture and ill-treatment,'' Von Boven adds.

In the aftermath of the Sep. 11, 2001 terrorist attacks on the United States, he says, ''thousands of persons suspected of terrorism, including children, have been detained, denied the opportunity to have legal status determined and prevented from having access to lawyers.'' Some of them, he adds, are said to be still held in solitary confinement, ''which in itself may constitute a violation of the right to be free from torture.'' Asked if he supports a call by Amnesty International for an independent commission to probe U.S. detention policies in Iraq and Afghanistan, Van Boven told reporters in October that such a probe is imperative. ''Whenever there are serious allegations of torture, investigations are absolutely necessary. And the results of these investigations should be made public because it's absolutely a public affair,'' said the special rapporteur.

In view of the U.N. position, the appointment of Gonzales as the new U.S. attorney general is a slap in the face of the international community, says Matt Rothschild, editor of 'The Progressive' magazine. ''Bush is thumbing his nose at the international community and all those who respect human rights by nominating Gonzales,'' Rothschild told IPS. ''You cannot simply up and bolt from the Geneva Conventions and the Anti-Torture Convention. Gonzales is Ashcroft without the edges and the delirium and the baritone. But the policy will remain the same,'' he added. ''It was Gonzales, along with Ashcroft and (Defence Secretary Donald) Rumsfeld and (Vice President Dick) Cheney, who signed off on tougher interrogation methods and on the hiding of prisoners from the International Red Cross,'' said Rothschild.

According to Francis A Boyle, who teaches international law at the University of Illinois, ''As White House counsel, Alberto Gonzales originated, authorised, approved and aided and abetted grave breaches of the Third and Fourth Geneva Conventions of 1949, which are serious war crimes. In other words, Gonzales is a prima facie war criminal. He must be prosecuted under the Geneva Conventions and the U.S. War Crimes Act,'' Boyle told IPS. In any event, the U.S. Senate must reject his nomination, because, as a presumptive war criminal, Gonzales is not fit to be attorney general of the United States, he continued. ''Should Gonzales travel around the world in that capacity, human rights lawyers such as myself will attempt to get him prosecuted along the lines of what happened to (former Chilean dictator) General (Pinochet,'' said Boyle, author of 'Destroying World Order'.

Jordan J Paust, law foundation professor at the University of Houston, agrees with Boyle's thesis. ''The denial of protections under the Geneva Conventions is a violation of the Geneva Conventions, and every violation of the laws of war is a war crime. Complicity in connection with war crimes (such as aiding and abetting the denial of protections) is also criminally sanctionable,'' Paust told IPS. Thus, it appears Gonzales is reasonably accused of international criminal activity, he added, although he has the human right to be presumed innocent until proven guilty in a court of law that provides basic human rights to due process protections, "that he chose to deny others with respect to the military commissions at Guantanamo Bay" (where Washington detains terror suspects).

''Whether or not Gonzales is guilty, the taint in this instance is surely enough to require that he not be confirmed in any U.S. governmental position, especially since the Bush administration has stated that it is still the policy of the United States to have a government under law and to promote the rule of law and human rights -- rights that are reflected also in the Geneva Conventions,'' Paust added. ''Making Alberto Gonzales the attorney general of the United States would be a travesty,'' says Michael Ratner, president of the Centre for Constitutional Rights. ''It would mean taking one of the legal architects of an illegal and immoral policy and installing him as the official who is charged with protecting our constitutional rights. The Gonzales memo paved the way for Abu Ghraib,'' Ratner said in a statement issued Thursday.