The rule of law

There was a fascinating panel discussion at today’s CLE on Counter-terrorism and human rights. Professor William Schabas, the director of Irish Centre for Human Rights served as moderator for the session. The rest of the panel consisted of Michelle Farrell, also of the Centre, professor Colin Harvey of Queen’s University Belfast, and Phil Shiner, a human rights lawyer at Public Interest Lawyers.

If there was a common theme to the discussion, it was the lowering of standards caused by the authorized use of coercive interrogation techniques.  Part of the reason is that the prohibition of torture lacks coherence and conceptual clarity, says Farrell, because it isn’t appropriately codified to address exceptional circumstances – such as the ticking time bomb situation.

This absence of clarity plays into the hands of states in their attempts to circumvent torture laws. To “amputate the law from brutality”, says Farrell, the torture prohibition must be absolute.

This seems to be view supported by Phil Shiner, although he charges that states understand all too well that their actions are illegal. For Shiner the principle problem is one of accountability.  Shiner was the lawyer for the family of Baha Mousa, an Iraqi citizen who died while in British custody in Basra in 2003. From his conference paper:

“The case of Baha Mousa, killed in Basra in September 2003, has already laid bare the deficiencies in the military investigative apparatus and justice system. Soldiers investigating other soldiers’ crimes only to be prosecuted by other soldiers before a panel of yet more soldiers is an insufficient way to satisfy modern calls for accountability.”

Shiner handed CLE attendees a rather gruesome inventory — three pages long — of alleged acts of torture perpetrated by U.S. and U.K. military and intelligence authorities. Examples abound of uncontrolled aggression and of religious and sexual humiliation.  Most worrying, says Shiner is how widespread the “inbred culture of abuse” is and how it chooses to ignore the rule of law.