By: Ambassador Hans Corell, former
Under-Secretary General of the United Nations for Legal Affairs and UN Legal
Counsel
A sad turn of events. It is wrong to think that one can
"make war" on terrorism. Torture and terrorism are crimes that like
other crimes must be fought through law enforcement. But after 11 September
2001, the question of protection of human rights has taken a sad turn.
On 24 September 2012, the
General Assembly of the United Nations, with the participation of attending
Heads of State and Government, adopted a resolution on the rule of law at the
national and international levels. In the resolution, they affirm their solemn
commitment to the purposes and principles of the Charter of the United Nations,
international law and justice, and to an international order based on the rule
of law – “which are indispensable foundations for a more peaceful, prosperous
and just world.” They further declare that the rule of law applies to all
states equally, and to international organizations, including the United
Nations and its principal organs, and that respect for and promotion of the
rule of law and justice should guide all of their activities and accord
predictability and legitimacy to their actions.
The resolution represents a
powerful confirmation of what the members of the UN are already obliged to
observe in accordance with applicable international law. But what about in real
life? In February, we heard President Obama's fifth State of the Union address.
For the fifth time he avoided even mentioning the UN in the speech. Certainly
not because he would not want to. But he has no doubt been dissuaded because in
the U.S. today the UN is so slandered that a mention could have political
consequences. And, certainly, the UN could be criticized. But who bears the
main responsibility: the Secretariat or the member states? The answer is
obvious: the member states! The situation in Syria is today the most
frightening example of the UN's inability to act. If the declaration just
mentioned is put in practice, one realizes that the Security Council from the
start should have made a unanimous and clear indication that there would be
consequences if abuses against the civilian population do not stop immediately.
In this case, the main responsibility for this failure rests with China and
Russia – two states that are far from the rule of law and its indispensable
component, democracy. In applying the UN Charter, it is imperative that states
use the same yardstick. In other situations, such as in the case of Israel and
Palestine, the responsibility for the UN's inability to act rests with Western
democracies, especially the United States.
In the United States there is
presently an intense discussion about the use of so-called drones and “targeted
killings.” It is not the use of drones that is the problem but how they are
used. According to the laws of war it is permitted in combat to attack and kill
combatants on the battlefield or in a combat zone. But to make an administrative
decision that particular or certain suspected terrorists anywhere in the world
be killed, and then perform the act with a drone operated from the other side
of the world makes one think of something completely different: murder! And
Guantánamo is still in use – the detention camp in Cuba, established by
President Bush, where the most fundamental rules of human rights are
systematically violated. It is sad that the advances made in the field of human
rights after World War II are now under serious threat. After the attack on the
World Trade Center on 11 September 2001, the matter has taken a different turn.
On 5 February this year, the Open Society Foundations published the report
“Globalizing Torture: CIA Secret Detention and Extraordinary Rendition.” The
report is a frightening account of how 54 countries, including Sweden, assisted
the American CIA with extraordinary renditions and secret detention of
terrorist suspects. The common denominator in the 136 cases described in the
report (the total number is not known) is that those affected were subjected to
torture or other inhuman or degrading treatment. Among other things there is
reference to the fact that Sweden in May 2005 was criticized by the UN
Committee against Torture for having in December 2001 handed over Ahmed Agiza
to the CIA that brought him to Egypt where he was tortured. And in November
2006, the UN Human Rights Committee concluded that Sweden's involvement when
the CIA at the same time sent Mohammed al-Zari to Egypt was a breach of the
absolute ban on torture.