JURIST Guest Columnist Chandra Lekha Sriram, Chair of Human Rights at the University of East London School of Law (UK) currently visiting at the University of Maryland School of Law, says that tensions between Europe and the US over American rendition policy and practice reveal a disturbing cultural chasm over the perceived significance of human rights obligations…

When Louise Arbour, the UN High Commissioner for Human Rights, stated on International Human Rights Day that international human rights law was a casualty of the so-called war on terrorism [recorded video], one might have expected the United States, a self-styled “champion” of human rights and democracy globally, to take notice. But since it was US policy at issue – specifically, attempts by US policymakers to redefine torture to make virtually any act permissible and to redefine and limit the range of persons protected by international humanitarian law – US criticism was turned not on the torturers, but on Arbour. US Ambassador to the UN John Bolton immediately denounced Arbour’s critique as illegitimate and inappropriate [recorded video], notwithstanding her position as the senior international civil servant for human rights and a highly-respected jurist.

The Bush Administration’s attempts to redefine human rights and its own humanitarian obligations put it squarely on a collision course with European countries even before news of secret prisons in Europe and the use of European airports and airspace for the transfer of rendered persons emerged earlier this month. US attempts at redefinition and obfuscation reveal a cultural chasm; European countries take their human rights obligations seriously, not as mere annoyances to be shelved when national security is at risk, but as serious constraints to be respected by law-abiding nations. By contrast, the debate in the US suggests a view that human rights obligations constitute unjustified interference by lawyers into the important business of fighting terrorism.

The divide between Europe and the US concerns the interpretation and application of the 1984 Convention against Torture [text], but it runs even deeper, as proscriptions against torture have become more legally entrenched and elaborated in Europe, thanks to the work of the European Court of Human Rights. In analyzing analogous language in the European Convention on Human Rights, the European Court has been quite clear: it is simply impermissible to deport or otherwise remove a person to a country where she might be tortured. The outrage of Europeans, ranging from the German and British leaders to EU members of Parliament, has forced US Secretary of State Condoleeza Rice to clarify US policy on torture: the United States, she said on her recent European trip, does not transport terrorism suspects "for the purpose of interrogation using torture" and "will not transport anyone to a country when we believe he will be tortured." She further indicated that the US sought reassurances from countries to which suspects have been rendered that these detainees will not be tortured.

This is, however, insufficient to meet US obligations under the Torture Convention, or to guarantee that suspects will not actually be tortured. Rice’s pronouncements amount to sheer formalism designed to absolve the US of responsibility for torture. European countries, like the US, face a real dilemma: release terror suspects to comply with laws concerning reasonable detention and risk releasing someone who is a real danger to their countries, or continue detention in violation of international standards. On the whole they have chosen the former option, although court intervention has been necessary in the UK, to ensure that suspects cannot be detained indefinitely, and that evidence derived from interrogation involving torture cannot be presented in court. It is a genuine dilemma, but not one that can be resolved by Rice’s simple redefinition of legal obligations.

Let’s consider the specific obligations under the Torture Convention: states parties are obliged not only to refrain from torture, but article 3.1 bars states from returning or extraditing individuals to countries where there are “substantial grounds for believing” that they might be tortured. This assessment is made, under article 3.2, by examining a state’s record, looking for the presence of a “consistent pattern of gross, flagrant or mass violations of human rights.” It is not enough, based upon the plain language of the convention, to ask for a promise that a suspect will not be tortured, not where all of the evidence makes clear that the suspect will likely face torture. Given the destinations of rendered persons, a promise simply cannot suffice. Indeed, the US is alleged to have rendered suspects to countries such as Egypt, Morocco, Syria, and Jordan, countries which the State Department’s own annual human rights reports condemn for serious human rights violations. Sending suspects to such countries virtually guarantees that suspects will indeed be tortured.

There is, however, one disheartening sign that the divide between Europe and the US, or at least the US and the UK, may be narrowing. The UK, unable to indefinitely detain terror suspects, torture them, or even expel them to their home countries, where torture is common, has reached agreements with Libya and Jordan this year in which those countries promise not to torture persons deported back to them. This brings the UK perilously close to the US policy on torture, although it is unlikely that such agreements will be considered sufficient guarantees if challenged before the European Court.

Finally, the import and effect of Rice’s “clarifications” itself remains unclear. Rice stated that the Torture Convention “extends to U.S. personnel wherever they are, whether they are in the U.S. or outside the U.S.” But it is not obvious that this is, in fact, what many in the Administration believe. Alberto Gonzales, the US Attorney General and author of the infamous “torture memos”, said in his confirmation hearings that the Torture Convention’s ban does not apply to US interrogations of foreigners abroad. On this account the US must not torture its own citizens at home and abroad, and cannot torture foreigners on its own territory. Everyone else is fair game. We may hope that it is Rice, not Gonzales, dictating rules regarding torture, but in the meantime there is great cause for concern. While publicly, at least, European leaders appeared placated by Rice’s clarifications, reports indicate that European publics and journalists are not reassured.

The Bush Administration’s perpetual attempt to redefine the law, subjects, and scope of the obligation not to torture has convinced many that the primary casualty of the “war on terror” is the protection of human rights. Rice’s comments seem unlikely to paper over real political and legal divides between the US and Europe regarding human rights and international obligations and institutions more generally, or the widening cultural chasm.

Chandra Lekha Sriram is Chair of Human Rights at the University of East London School of Law. She is currently visiting at the University of Maryland School of Law.
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