Wikileaking the Truth about American Unaccountability for Torture -report 2012


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L. Hajjar/Societies Without Borders 7:2 (2012) 192-225
© Sociologists Without Borders/Sociologos Sin Fronteras, 2012
Wikileaking the Truth about American
Unaccountability for Torture
Lisa Hajjar
University of California—Santa Barbara
Received September 2011; Accepted March 2012
Grave breaches of the Geneva Conventions are international offenses and
perpetrators can be prosecuted abroad if accountability is not pursued at home. The
US torture policy, instituted by the Bush administration in the context of the “war on
terror” presents a contemporary example of liability for gross crimes under
international law. For this reason, classification and secrecy have functioned in
tandem as a shield to block public knowledge about prosecutable offenses. Keeping
such information secret and publicizing deceptive official accounts that contradict the
truth are essential to propaganda strategies to sustain American support or apathy
about the country’s multiple current wars. Although a great deal of information and
evidence has come to light about the US torture policy, there has been no thorough
domestic investigation up the chain of command, no full public disclosure, and no
effort to prosecute its intellectual authors in US courts. The classified diplomatic
cables allegedly provided to Wikileaks by Bradley Manning have revealed one critical
way in which this unaccountability has been enforced. This article addresses four
issues: First, a consideration of the importance of accountability for torture and other
gross violations of international law; second, a summary of efforts to hold US officials
accused of torture-related offenses accountable in European courts; third, an
examination of several leaked diplomatic cables that expose the lengths to which both
the Bush and Obama administrations have gone to derail these foreign criminal
investigations in Germany and Spain; and fourth, the unexpected consequences that
leaks played in unleashing anti-authoritarian uprisings in the Arab world and the
possibilities of future accountability.

The right not to be tortured is the most universal and,
arguably, the most important right that human beings have because it
applies to all people everywhere under all circumstances, including in
the context of war and armed conflict, and it is absolutely non-
derogable (Hajjar 2009a). The right not to be tortured is a negative
right, constituted through the prohibition of practices that meet the
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L. Hajjar/Societies Without Borders 7:2 (2012) 192-225
© Sociologists Without Borders/Sociologos Sin Fronteras, 2012
legal definition of torture, namely those acts of omission or
commission that purposefully cause severe physical harm and/or
mental suffering to people who are in custody but have not been
found guilty of any crime. (The prohibition excludes the harms arising
from lawful, court-ordered punishments regardless of their brutality.)
Thus, the legal prohibition of torture imposes a sharp limit on the
rights of states by depriving state agents and anyone acting under the
color of law (e.g., government-hired contractors) of any lawful excuse
to engage in or abet such prohibited practices.
Torture is in the same negative-right company with genocide
and war crimes. Together, these negative rights aptly have been
termed the “harder human rights” (Hagan, Schoenfeld and Palloni
2006). What distinguishes torture from violations of other harder
human rights is the custodial relationship. The clarity of the custodial
relationship (i.e., people are either in custody or they are not) and the
extreme power imbalance between custodians and prisoners
distinguishes the harms of torture from the conditions in which
violations of the other harder human rights occur. At least in theory,
people who are vulnerable to non-custodial violations can fight back,
flee or surrender. Those self-preservation options are not available to
people in custody.
The prohibition and criminality of torture is customary
international law, which creates legal obligations to prosecute people
accused of perpetrating or abetting this gross crime. When those who
are accused of engaging in torture are not prosecuted and punished,
their immunity or impunity makes a mockery of the law itself (see
Human Rights Watch 2011). Such mockery characterizes post-9/11
decisions by US officials in the Bush administration to institute
policies that disregarded the legal prohibition of torture in the
interrogation and detention of suspects captured in the “war on
terror,” and was compounded by disregarded obligations under
federal and international law to pursue accountability, which extended
to the next administration (Hajjar 2009b). President Obama has
justified this failure with the facile mantra of “looking forward, not
backward.” However, domestic unaccountability does not absolve
perpetrators and abettors because torture is a crime that attaches
universal jurisdiction, which means that perpetrators can be
prosecuted in foreign national court systems if they are not prosecuted
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L. Hajjar/Societies Without Borders 7:2 (2012) 192-225
© Sociologists Without Borders/Sociologos Sin Fronteras, 2012
in the country with jurisdiction over the accused (active personality
jurisdiction) or the country where the crime occurred (passive
personality jurisdiction).
The doctrine of universal jurisdiction is premised on the
principle that some crimes under international law—including
torture—are so grave that their perpetrators are “enemies of all
mankind” (hostis humani generis) and, therefore, that all countries have
an interest in enforcing the law against them. When torture occurs in
the context of war, as was the case in the US torture policy, it
constitutes a grave breach of the Geneva Conventions of 1949, at
minimum violations of Common Article 3, which pertains to “non-
international” (i.e., not state-to-state) wars. Common Article 3
prohibits and criminalizes torture, cruel treatment, and “outrages on
human dignity” of detained people who do not qualify for prisoner-of
-war status. Such violations are war crimes, which attach a principle of
accountability similar to universal jurisdiction because the Geneva
Conventions are customary international law and impose an explicit
duty on every state party—which, since the turn of the twenty-first
century, includes every state in the world—to seek extradition of
accused war criminals or at least to avail its courts for prosecution (aut
dedere aut judicare).
The vast majority of war crimes committed in conflicts
around the world go unpunished. Torture, for reasons noted above
(i.e., the non-derogable nature of the prohibition and the clarity of the
custodial relationship), lends itself more readily to the possibility of
prosecution than other types of war crimes. The use of excessive force
or the deliberate targeting of civilians are no less illegal but impose
greater challenges to prosecution because the so-called “fog of war”
makes it more difficult to ascertain and prove that those ordering or
executing a military operation in which civilians are killed did so
intentionally. Unintentional killing of civilians in a legitimate military
operation targeting combatants is not a war crime; rather, it bears the
cold label “collateral damage.” The use of indiscriminate weaponry
(e.g., landmines, chemical weapons), which is a policy decision, is even
harder to penalize in practice because the issue of intent lies far up the



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