Alex Neve

The years are certainly passing for some of the key milestones in the debate about security and human rights that has raged over the past decade.  As such, as we begin a new decade it is certainly worth taking stock of where we stand.  Human rights have, without a doubt, taken a debilitating hit in the decade of the “double naughts”. Does the decade ahead promise any better?

It has been close to 8 ½ years since the terrible September 11^th terrorist attacks. It has been eight years now since Guantánamo Bay covertly received its first hooded and shackled prisoners from Afghanistan.  For Canadians, it has been more than six years since Maher Arar was returned to Canada and over three years since the public inquiry into his case wrapped up.  And it has been just over seven years since fifteen year old Canadian citizen Omar Khadr was sent off to Guantánamo, where he still languishes in the face of indifference from his own government.

The tension between human rights and national security has dominated the global and national political landscapes since September 11^th.  It is, of course, a debate that far predates that day – governments around the world have long used security as a mask or excuse for human rights violations.  Amnesty International has documented such concerns over several decades.  But the global reach and global consequences of the debate over these past 8-plus years has been unprecedented.

In a whole host of ways – sometimes blatant and defiant, other times insidious and secretive – governments of all stripes, democratic and tyrannical, have sold human rights short in the name of security.  The resulting violations have touched upon a myriad of important, long-established rights: protection from torture, fair trials, prohibitions on arbitrary arrest and indefinite detention, freedom from discrimination, freedom of expression, essential rights related to refugee protection, consular rights, and more.  Alongside those violations a nasty new lexicon of human rights violations has entered everyday parlance: extraordinary rendition, waterboarding, black holes and Gitmo, to name just a few, are all terms now universally equated with suffering, injustice and disregard for the rule of law.

All have been worrying but it is perhaps the debate about torture that has been the most distressing.  Amnesty International would be the first to acknowledge – even lambast the fact – that torture continued to be an ugly global scourge before and right up to September 11^th.  Governments, militia groups, guerrilla bands and others all regularly carried out, encouraged, tolerated or were powerless to stop torture in countries on every continent.  But while its practice was still commonplace, it was at least clearly and universally acknowledged that it was against the law.

What has been do destructive about the debate since September 11^th is the many ways that governments, including the United States and other governments that had long been important champions of the struggle against torture, have sought to get around the law by pretending that torture is not torture or by washing their hands of torture committed by others; and even by questioning whether laws banning all torture remain relevant at all in the time of the ‘war on terror’.  The underlying premise has been that a bit of torture will help us find the terrorists and stop the terrorists and that if that is what it takes to keep us all safe, the safety of the many justifies the torture of a few.

It is a debate that has exacted a considerable human cost.  And it is a debate that should never have been launched in the first place.  Torture is absolutely and unequivocally banned in all international and regional human rights treaties.  The UN Convention against Torture makes it explicitly clear that “no exceptional circumstances whatsoever” can ever be “invoked as a justification of torture”.  Torture is also absolutely and unequivocally banned in a plethora of national constitutions and laws.  It is absolutely and unequivocally banned for very good reasons.

First, it is banned because it does not work.  Torture is not the route to getting solid and reliable information.  The universal experience, in fact, is that people, innocent and guilty, will say anything, confess to anything, implicate anyone, to bring the numbing terror of torture to an end.  These post-September 11^th years have certainly been filled with a multitude of such examples.  That is the anguished reality that lies behind the web of nightmares that befell the numerous Canadian citizens detained and tortured in Syria and Egypt between 2001 and 2004, for instance, who have provided detailed testimony as to the ways in which they agreed with whatever they thought their captors wanted to hear, including confessing to a non-existent plot to blow up Parliament.

Second, of course, is that torture knows no bounds.  Proponents of the view that we should allow some torture argue that it would be possible to limit it to the bad guys.  Only the kingpins in terrorist networks or those who have knowledge of the next terrorist attack would find themselves on the receiving end of the torturer’s electric shocks or sharp needles.  But that is not reality.  Wherever it happens, torture never stays confined.  It grows and expands. Amnesty International’s detailed documentation of torture worldwide, over several decades, has made that very clear. The tentacles of the torturer only reach out and claim more and more victims.  Soon it is also okay to torture the person who knows where the kingpin is hiding, and then it is okay to torture that person’s sister, and then to torture someone who went to school with the sister.  Torture does not end and thus should never begin.

But finally, and most importantly, torture must continue to be universally banned because it simply must.  It is unconditionally prohibited because it strikes at the  heart of the notions of integrity and dignity that are the core of the very concept of human rights in the first place.  Allowing torture, for any reason, does not make us more secure.  Rather it simply creates more victims, more resentment and more marginalization; all of which breed further dissent, violence and even terrorism.  Torture does not take us towards security and justice; it keeps us trapped instead in circles of insecurity and injustice.

Is it swinging back?  Be it with respect to torture or the wider human rights landscape, are governments finally recognizing the harm that has been done over these past many years.  Are they prepared now to ensure that human rights are at the very centre of national security laws, policies and practices?

Clearly a year ago there was great hope that we have turned that corner.  President Obama’s inauguration and subsequent ringing announcement of plans to close Guantánamo Bay and banish interrogation techniques amounting to torture gave reason to be optimistic.  A year later that enthusiasm has faded somewhat.  It is clear that Guantánamo will not close as soon as first thought and that some of the injustice of Guantánamo may simply be transferred onto the mainland.  Recent concerns about Al-Qaeda activities in Yemen have stalled release plans for Yemenis still held at Guantánamo.  Political battles are looming as to where on the US mainland detainees who are not to be released will be held.  And plans to bring some detainees, including Canada’s Omar Khadr, before unfair military commissions continue — though at the same time of course, Khalid Sheikh Mohammed and other so-called “high value” detainees are to face full trials before regular US courts.  On the encouraging front, though, the US has recently supported the establishment of an international ombudsman to receive complaints about the operation of the UN Security Council mandated ‘no fly’ list.

The record has also been mixed in Canada.  The Canadian federal courts have been very strong throughout 2009, issuing a number of forceful judgments upholding human rights in a variety of national security contexts.  The Federal Court ordered the Canadian government to facilitate the return home of Canadian citizen Abousfian Abdelrazik, who had been virtually exiled in Sudan after earlier having been effectively set up for arrest and imprisonment there by Canadian officials.  The Federal Court and the Federal Court of Appeal both ordered the Canadian government to seek Omar Khadr’s repatriation from Guantánamo Bay, an issue that is now before the Supreme Court of Canada.  The Federal Court has also overturned two immigration security certificates, highlighting the prejudicial nature of the profoundly unfair legal process that governs in those cases, and rendered other decisions scaling back the onerous bail conditions tied to the release of individuals subject to certificates.  So things have been quite encouraging on the legal front.

Politically it is much more dismal.  The government’s adamant refusal to assist Omar Khadr, despite two court rulings, virtually unified media opinion, UN level demands and wide public concern, almost defies belief.  The approach taken to the handling of prisoners apprehended by Canadian troops on the battlefield in Afghanistan has shown callous disregard for the risk of torture and a preoccupation with scoring political points back in Canada.  And the failure to mediate in good faith the compensation claims of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, all of whom suffered grave human rights violations in Syria and/or Egypt in part because of the actions of Canadian officials, has been deeply disappointing.  Canadian complicity in their fate was documented by a judicial inquiry, but there has been no willingness to ensure they receive the redress that is their right.

So we enter this next decade with slight reason to feel hopeful that the security pendulum is very slowly starting to swing back towards human rights.  Even with positive signs on a number of fronts, however, the progress is tenuous at best and can easily slip back (witness some of the responses to the attempted bombing of the Detroit bound airliner over the holiday break).  Clearly, in legislatures, courts and with the public, there remains much to be done to shore up the very simple, but profoundly important message that human rights is the key, not the obstacle, to lasting security.