Describes Paradigm Shift Since 9/11 On Torture
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October 28, 2008 (NEW YORK) – The terrorist attacks on 9/11 brought a “paradigm shift” in how Western countries view torture, according to Manfred Nowak ’75 LL.M (left), United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment. “Torture was taboo until that time. There was an absolute prohibition,” said Nowak, who spoke at a Human Rights Institute panel at Columbia Law School on October 22, 2008. He has been the Special Rapporteur since 2004 and was in New York to deliver his annual report to the United Nations.
The United States took the lead in relaxing prohibitions on torture, and many other governments followed suit, he said. Referring to the “Rumsfeld Memorandum,” Nowak said the Bush administration ruled many techniques permissible, including water boarding, stripping detainees naked, forcing them into painful “stress” positions and exploiting phobias. Some of these techniques were used at Abu Ghraib.
Nowak, a native of Vienna, has published more than 350 books and articles in the fields of human rights, public law and politics. He is also a member of the EU Network of Independent Experts in Fundamental Rights and he lectures on constitutional law and human rights at the University of Vienna. From 1996 to 2003, he served as a judge at the Human Rights Chamber for Bosnia and Herzegovina in Sarajevo.
Nowak began his talk at the Law School by providing an overview of the U.N.’s anti-torture principals first laid down after World War II. These guidelines define torture as the intent to cause severe physical or mental pain and suffering, the intent to dehumanize and the complete powerlessness of the victim.
Nowak also outlined several legal instruments set up after W.W.II., including the policy of international jurisdiction: If a suspected torturer turns up outside his home country, the host country has the authority to take action against him. Likewise, no country can send a person back to his native country if there is a likelihood he or she would be tortured. Victims also have a right to complain and receive treatment for injuries and post-traumatic stress.
Calling the 9/11 attacks “crimes against humanity,” Nowak said they needed to be combated, but within the framework of international law. “Certain counterterrorism techniques undermine it,” he said. Specifically he referred to the policy of “extraordinary rendition,” in which the U.S. sends terrorism suspects outside its borders to countries known to torture.
Nowak also objected to the notion that since Bush Doctrine policies supposedly comply with the “law of humanity,” the international human rights torture treaty does not apply. “Of course it applies,” said Nowak, who pointed out that many interrogation techniques at Guantánamo Bay were torture.
Nowak said that after 9/11 some academics also called for relaxing torture restrictions in extreme circumstances. Referring to the “ticking bomb” theory, he said that academics such as Harvard Law School professor Alan Dershowitz have argued that dubious interrogation methods were acceptable if an attack was considered imminent and a detainee might have critical information to prevent it. Nowak strongly disagreed.
The topic was on the mind of Peter Lochore ’09 LL.M, who is studying torture policies in a course taught by Professor Philip Bobbitt. Bobbitt recently published the book, “Terror and Consent, Wars of the 21st Century.” The class was querying whether, given extreme circumstances, a jury might decide what interrogation procedures were appropriate. Nowak’s response was unequivocal.
“If you make exceptions for extreme circumstances, you open up the floodgates,” he said. “I don’t want to be a judge making decisions based on undocumented, vague information. I don’t want to say, ‘Electric shock is okay in this case.’” He added that some of the most brutal Latin American dictators started out this way.
School of International Public Affairs student Rohina Phadnis questioned how this would play out in countries such as Saudi Arabia where torture is widely used, yet victims have little access to rehabilitation or reparation.
Nowak conceded that this was a huge problem and one reason why he advocates for greatly enhanced international jurisdiction over torture, including independent police and prosecutors.
Another audience member, Shizhong Chen, of the Conscience Foundation based in San Francisco, turned the conversation toward his native China. He said that while so much press attention is focused on places like Guantánamo Bay, far more egregious acts occur everyday in China, yet they get little or no attention. The Conscience Foundation advocates for the safety and human rights of Falun Gong members.
Nowak said that while today there are better ways to monitor human rights violations in China, it is very difficult to influence the government. “The more powerful you are, the harder it is to pressure you,” he said. But he said that didn’t mean he would take the pressure off and he remained hopeful of effecting change in the country.
Another LL.M. student, Marion Guerrero of Vienna, Austria, said that she took her first human rights course with Nowak at the University of Vienna, and credits him with sparking her interest in the field where she now plans to make her career.
The popularity of the lecture was evident in that nearly the entire audience stayed a half hour past the scheduled ending time. “It’s a great benefit of being at Columbia,” said Lochore, “to have someone of this eminence come and share his views and insights. It’s extremely valuable.”
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