Asst. Sec. of State for Democracy, Human Rights, and Labor, Tom Malinowski stated to the UN Committee on Torture two weeks ago that:
A little more than ten years ago, our government was employing interrogation methods that, as President Obama has said, any fair-minded person would believe were torture. At the same time, the test for any nation committed to this Convention and to the rule of law is not whether it ever makes mistakes, but whether and how it corrects them.
But what does correction look like? What obligations of repair follow from the acknowledgement that torture was routinely and consistently practiced by the United States? It is very clear that the Convention Against Torture (Article 14) as well as the collective jurisprudence of regional and international courts require that reparations follow from harm committed in breach of human rights treaty obligations. At the same hearings, Acting Legal Advisor to the State Department, Mary McLeod claimed that the United States “has taken important steps to ensure adherence to its legal obligations.” These include the creation and enforcement of laws and processes “to strengthen the safeguards against torture and cruel treatment” including Executive Order 13491. We are told that Army Field Manual Rules on Interrogation are now being fully enforced, and that there is great transparency in interrogation procedures, though with some ambiguity whether these procedures apply outside the territory of the United States. There is one resounding silence. In the context of torture committed at Guantanamo Bay and in other detention sites across the world not one word emerged from the delegation on what direct and specific obligations of reparation were owed to those persons who experienced torture at the hands of agents of the United States. This gap was directly addressed by Jens Modvig, the Country Rapporteur who asked the delegation to clarify:
… how many victims of torture have legally pursued and successfully obtained effective remedy for torture during U.S. custody within and outside U.S. territory?
In parallel, the US position on prosecution maintains a curious silence on the salience of accountability for torture post 9/11, though prosecutions in other contexts against international recognized torturers is touted as evidence of a commitment to broadly based accountability. In the midst of this resounding silence, my comments focus on what the Committee can and should expect of the United States with respect to reparations for Guantanamo Bay detainees and others ill-treated in black sites.
A starting point to addressing why the United States has an obligation of reparations is to recall why remedies exist for human rights violations under international treaty law. Reparations exist because they provide a concrete means to show a desire for non-repetition, to give redress to persons who have been harmed and to individually confirm meaningful condemnation in the aftermath of grievous harm to a human being. Recall that the ICJ has held that “the power to afford reparations is implicit in jurisdiction to hear a case, as a necessary concomitant to deciding disputes.” Simply put, reparations are necessary to repair the legal injury.
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