June 26 is a day designated by the United Nations as International Day in support of victims of torture. The General Assembly resolution creating the date imagined this as a day stakeholders – member states and their citizens – would unite in support of those that have endured torture and cruelty and recommit to ending its scourge. As international legal experts on this matter, we are using this opportunity to remind member states of their commitments, specifically that victims have meaningful access to seek judicial redress. Access to justice is the key feature of the right to redress and is a critical part of the global fight against impunity to which we have all committed ourselves.
Article 14, of the CAT enumerates that signatories must provide in their “legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.” Even for countries that have a strong record against torture and cruelty and enacted domestic protections against their use, this requirement to open up their legal systems to victims, has proved more challenging. Our work has been undertaken in the context of these domestic challenges, to support the legal right to redress, compensation and rehabilitation for victims.
As a former International Chief Prosecutor and a Registrar before international courts, charged with seeking justice for victims of heinous human rights abuses, we have personally witnessed the importance of and healing effect that victims derive both from judicial redress and an opportunity for adequate compensation. The impact of meaningful judicial redress on both victims and their societies’ healing and reconciliation is profound. It also acts as a powerful deterrent for future human rights abuses.
The Rendition, Detention and Interrogation (RDI) program employed by the U.S. post 9-11, has seen scant judicial redress afforded to victims. Although the program was run by the U.S., many European countries, including the U.K., enrolled as junior partners. All governments involved in this shameful program have shied away from transparency and accountability, including providing victims with judicial redress options, but none has been able to completely bury their moral and legal responsibilities.
In the U.K. the government spent eight years trying to shirk responsibility for redress for its role in the rendition and torture of Libyans, Abdul-Hakim Belhaj and his wife Fatima Boudchar. Belhaj and Boudchar were on their way to the U.K. to seek asylum, and with the knowledge and assistance of MI6, they were detained and tortured in Thailand by the CIA. This torture included painful stress positions, drugs, and vicious beatings, despite Boudchar being several months pregnant. Finally, last year, after the case had made it to the Supreme Court and 11 million pounds had been spent avoiding this outcome, the U.K. Prime Minister offered the couple an unprecedented public apology.
It is not known what the U.S. has spent trying to avoid similar suits because so far, American courts have not proven meaningfully accessible to victims of post-9/11 U.S. counterterrorism abuses. The “state secrets” privilege has meant courts have routinely rejected attempts by victims to bring lawsuits against the government. The 2018 Supreme Court decision, Ziglar v. Abbasi, has further rendered the federal courts seemingly powerless to act. As the Convention lays out, victims are entitled to and deserve their day in court–to have the cases judged on the merits, not dismissed at the pleadings stage–just as the victims we heard from did.
Notwithstanding some judgments of the European Court of Human Rights, victims of the RDI program have not yet been able to obtain judicial redress and the recent International Criminal Court decision to reject the Chief Prosecutor’s request to investigate possible war crimes connected to the conflict in Afghanistan, means that options for international justice have now dwindled. The Senate Select Committee on Intelligence Report on the CIA RDI program lists at least 119 detainees whose treatment was acknowledged to have risen to the level of torture and cruel, inhumane and degrading treatment. In addition, others were subject to cruel and unlawful treatment by the Department of Defense or transferred to foreign governments. All these detainees and their families are owed their chance at redress, apology and compensation, by the U.S. and their many enablers.
This year will mark thirty-five years since the text of the Convention was adopted by the General Assembly of the United Nations. Since this time, 164 members states have signed and ratified the treaty – the U.K. in 1987 and the U.S. in 1994. They have both developed strong traditions of global support to victims of torture, but these have not extended to victims of the RDI program. On this day to remember victims of torture, we hope that they both will acknowledge their obligation to torture victims and remove the barriers which prevent individuals from having a right to seek meaningful judicial redress, compensation and rehabilitation in their courts.
David M. Crane, an international criminal lawyer, was the founding chief prosecutor of the international war crimes tribunal called the Special Court for Sierra Leone, 2002-2005. He was a Commissioner on the North Carolina Commission to Investigate Torture and is a Principal with Justice Consultancy International LLC.
Herman von Hebel is the former Registrar of the International Criminal Court and the Special Court for Sierra Leone. He is a Principal with Justice Consultancy International LLC.
Suggested citation: David M. Crane & Herman von Hebel, A Day to Remember Justice, JURIST – Academic Commentary, June 26, 2019, https://www.jurist.org/commentary/David-Crane-Herman-Hebel-remember-justice
This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org
