Lesson 3 Flashcards
CIA torture
Reservations to interpretation of torture allowed “enhanced interrogation techniques” used by the CIA. CIA torture prisoners in the Guantánamo Bay.
US ratified CAT in 1994.
Adopted a interpretation of torture, as: “intentional infliction of severe pain or suffering, “
Which allows the US to use tools for what other states might define as torture.
Human rights abuses
Plausible Legality: To justify human rights abuses while claiming to act within the law.
Create legal justifications for human rights abuses, rather than overtly breaking the law.
(Banning FTF to return to country)
Permits states to violate human rights under a façade of legal compliance but also risks eroding international norms over time.
Why:
Instabilities in Legal Rules: The text argues that legal rules are vulnerable to manipulation because of inherent instabilities.
Example
Torture: The Bush administration manipulated the definition of torture to claim that “enhanced interrogation techniques” (EITs) were legal. This involved ignoring relevant legal sources, and using an unrelated healthcare case to make a weak interpretation of the definition of torture
Rebekka Sanders
How is “plausible legality” different from simply breaking the law?
Instead of outright rejecting or ignoring the law, plausible legality tries to manipulate the law to fit the desired outcome.
It seeks to create the appearance of legality, even if the interpretation of the law is highly questionable.
Ambiguities and Loopholes in Legal Frameworks
States has been more aware of the loopholes and gaps in the law. How to solve it? Use less vauge definitions.
Erosion of Human Rights Norms
The sources argue that the practice of “plausible legality,” if left unchecked, can lead to the erosion of human rights norms.
Foreign terrorist fighters
Foreign terrorist fighters.
FTFs include all individuals who travel to another state (other than their states of nationality or residence to plan, prepare or participate in acts of terrorism). FTFs also include individuals who provide or receive
terrorist training.
Principle of Subsidiarity
Decisions and actions should be taken as close to the citizen as possible
Right to Enter One’s Country
Issue: FTFs face travel bans and passport cancellations, stranded abroad.
Law:
UDHR Art. 12 (non-binding): Freedom to return to one’s country.
ICCPR Art. 12(4): No arbitrary denial of return.
Duty to Repatriate POWs
Issue: Limited repatriation of women and children detained in Syria.
Law:
3. Geneva Conv. Art. 118(1): POWs must be repatriated after hostilities end.
Investigating war crimes
Issue: States must prosecute nationals for war crimes.
While domestic courts in Iraq and Syria may have primary jurisdiction over crimes committed by FTFs, there are concerns about the fairness of these trials.
Art. 14, fair trial.
Territorial Jurisdiction
Concept: States where crimes occur (e.g., Syria/Iraq) hold primary jurisdiction.
Right to Fair Trial
Issue: Trials in conflict zones lack fairness; inconsistent repatriation policies.
Law:
ICCPR Art. 14: Right to a fair, public, and impartial hearing.
Convention on rights of the Children
Children associated with armed groups should be treated as victims and not as perpetrators of terrorism.
Optional Protocol on the Involvement of Children in Armed Conflict (2000):
Raises the minimum age for compulsory recruitment and participation in hostilities to 18 years.
Article 4 of the additional protocol to Convention of children’s right outlines armed groups that are distinct from state forces cannot, under any circumstances, recruit or use persons under the age of 18 in hostilities.
Conrad Nyamutata
Governing Terror by Michael Dillon
Biopolitics
Dispositif de se´curite. That is to say regulates, strategizes, and
seeks to manipulate the circulation of species life
Biopolitics refers to the political strategies and practices through which biopower is exercised. It is about how states, institutions, and governments deploy policies and strategies to regulate life processes within populations.
Biopolitics is a system of mechanisms through which species life is regulated.
Detainees at Guantánamo Bay were classified as “unlawful enemy combatants”, a category created to place them outside the protections of the Geneva Conventions and U.S. constitutional rights.
Article 4, Third Geneva Convention (1949):
Defines the categories of individuals entitled to POW status.
The U.S. argued that these individuals fell outside the protections of the Third Geneva Convention (not POWs).
Michel Foucault
Biopower
This concept, stemming from Michel Foucault, refers to a form of power that focuses on the regulation and management of life at the species level.
right to make live (or foster life) andlet die (or disallowlife to the point of death)
Governing Terror: The State of Emergency of Biopolitical Emergence
MICHAEL DILLON
Michel Foucault
Biopower as a Security Apparatus
This apparatus aims to manage and control the uncertainties and risks (contigency) associated with the processes of life itself.
Contingency
Uncertainty and unpredictability inherent in life and events.
POW
Prisoners of war.
Individuals captured and detained during an armed conflict by an opposing party.
Third Geneva Convention article 4.
FTF
Individuals who travel to a country other than their own, often to join terrorist organizations, participate in armed conflicts, or engage in terrorist activities.
Terrorism
Act or threat
With a political objective
Sates and terrorism
State’s can’t be seen as terrorists, only seen as violaters of human rights law.
Terrorist groups
Can’t take a terroist group to a treaty body, as they aren’t a state.
Role of International Criminal Law to terrorism
- No HR mechanism to hold non-state actors accountable.
- International criminal law can play a gap filling function: Serve as a substitute for the inability of huma rights mechanism.
- ICC regional tribunals.
ICCPR art. 4
Allows derregation from HR, if threatens the life of the nation.
No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
Non-Deregoable Rights
ICCPR art. 6, 7, 8, 11(1 & 2) 15, 16 and 18.
War on terror
Escalates with 9/11. G. W.
George W. Bush, Prepares Americans it would be a lengthy campaign.
Guantanamo
“Gitmo” - Military base/prison in Cuba
Houses ‘enemy combatant’.
Place where neither US nor international law applies.
No protection of the Geneva Convention, despite of reports of abuse and torture.
Obama wanted to close the base.
Trump wants to maintain, to detain ‘bad dudes’.
Biden pledge to close facility before he leaves… Look it up in January.
Uses ‘enhanced interrogation techniques’.
Only muslim men kept in the prison.
Disiciplinary-soveriegn power
Right to let live and make die.
Jus ad bellum
Conditions of which states may go to war.
UN Charter 2(4): Soveriginity
UN Charter 51: Right to self-defence.
Jus in bello
Rules agreed upon by all states that governs the conduct of parties during war.
1949 Geneva Conventions and additional protocols.
RDI
CIA’s Redention, Detention, and Interrogation program involved the kidnap, detention and years of torture.
2001-2010
Regime of torture
CAT 3
No one shall be send to a country of where they risk torture.
Non-refoulement treaty provisions
- CAT art. 3, if risk of torture
- Geneva convention Additional Protocol I (1977) Article 45(4) prohibits the transfer of individuals to a country where they may face persecution (refugees)
- ICCPR art 6+7: Prohibits refoulement if it leads to arbitrary deprivation of life or torture/inhuman treatment.
Widagdo, Indrayanti,
and Saraswati text discuss
Repatriation as a Human Rights
Approach
FTF
Repatriation of FTF’s
FTFs: Individuals who traveled to join ISIS in Syria and Iraq
UN Security Council Resolutions (UNSCR 2178, 2396) and human rights principles, leans towards repatriation of FTFs, as they risk facing violations of art. 7 and 14 ICCPR.
Universality of human rights
FTF’s ICCPR Article 12(4), no one shall be deprived of the right to enter his own country.
No repatriation:
National security.
Public opinion.
Regime of torture
The authors argue that the ongoing conditions at Guantánamo, including arbitrary detention, abuse, inadequate healthcare, and unfair trials, constitute a deliberate “regime of torture”.
CIA’s Rendition, Detention, and Interrogation (RDI) program, arguing that it constitutes a persistent “regime of torture” at Guantánamo Bay
Ruth Bakely
Human Rights on Terrorism
Critical analysis of the human rights implications of the “war on terrorism.” It argues that an overemphasis on security at the expense of human rights.
Guantanamo Bay Detainees: “Human rights free zone” - directly against Universality of human rights.
Rendition: Maher Arar, layover in JFK airport, canadian passport, on his way to canada, transported to Syria without a hearing.
Syria 1 year, torture. Violated the principle of
Non-refoulementm CAT article 3.
Principle of ICCPR Art. 12(4): No arbitrary denial of return.
Paul Hoffman
Terrorism
Argues that terrorism should be defined by the methods used – deadly or serious violence against civilians.
The lack of a universal definition of terrorism can lead to the misuse of the term by authoritarian governments to suppress political opposition or minorities.
Some governments have sought to frame their counter-terrorism efforts as a “war,” arguing that this justifies the application of international humanitarian law, which governs armed conflicts, rather than human rights law.
Martin Scheinin
