Acknowledging its structural loopholes, even if the international human rights regime were to be reformed to make it more applicable in the current political situation, the question remains if it will ever be able to enforce itself against a superpower like the US
The deterioration of the human rights situation in much of Asia can be termed as the most imminent outcome of the war on terror. Uncontested in truth and undeniable through evidence, human rights violations perpetuated by the US foreign policy stand as the central characteristic of the post-9/11 world order, which has further highlighted the need to question the credibility, efficacy and influence of the universal human rights regime. The blatant abuse of human rights can be seen through the widely reported incidents in the Bagram prison camp in Afghanistan, used as a torture facility by the US, which reflects not only the US hegemony and unilateral stance over international affairs but the inability of the universal human rights regime to serve under the current world order. It is, in effect, constrained by the notion of state sovereignty and the lack of an enforcement mechanism. Other dilemmas hindering the capacity of the international regime to function as per its original claims include the flexibility of choice to ratify crucial international conventions as well as the fact that the UN Security Council gives the most powerful states the veto power against decisions pertaining to the world.According to estimates by human rights organisations, the US is holding at the Bagram Air Force Base north of Kabul in Afghanistan more than twice the number of prisoners held at Guantánamo. The prisoners are compacted into wire cages, forced to sleep on the floor and only given plastic buckets for latrines.
According to Human Rights Watch, prisoners held at Bagram, which is being expanded to hold up to 1,000 detainees, have no right to a lawyer, no access to the courts and barely any right to challenge the grounds for their detention. The mistreatment of detainees violates the Convention against Torture and the International Covenant on Civil and Political Rights, both of which the US has ratified. Moreover, according to article five and nine of the Universal Declaration of Human Rights and International Bill of Rights and the International Covenant on Civil and Political Rights respectively, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and “No one shall be subjected to arbitrary arrest, detention or exile.”
In the wake of 9/11, dominant voices in the Bush administration’s inner circles subscribed to the idea that if ‘coercively interrogating’ prisoners could provide intelligence to save American lives and win the war on terror, then ‘quaint’ laws should be no obstacle. The top advocates for torture and other extra legal policies were Vice President Dick Cheney and his brain trust. The Justice Department’s Office of Legal Counsel (OLC) produced a series of secret memos stating that the president, as commander in chief, has unrestrained powers to wage war; any efforts to subject executive discretion over interrogation and detention policies to federal, military or treaty laws would be ‘unconstitutional’; prisoners designated as terrorists by presidential fiat (rather than status review by a tribunal) should have no habeas corpus right to contest their detention and no right not to be maltreated. Hence, making the world safe from terrorism quickly came to be seen as antithetical to strong international human rights institutions. It would be worthwhile to question whether human rights have irretrievably lost their status in international affairs and national policy making in the wake of the war on terrorism.
The Bush regime termed Afghanistan an ‘exceptional state’, under which circumstances the nature of its intervention and actions were justified, as if giving them the license to act independently and chart Afghanistan’s destiny. The US was thus able to chart its own path through a unilateralist policy with little regard to other states’ — even the United Nations’ — discontent over its intentions. It should be understood that international law has often been moulded more by the structural demands of the US than by the latter’s outright retreat. This is reflected in US reluctance to accept strong mechanisms which have been part of a general tendency to maintain international law in its traditional state, meaning in a primitive state, characterised by indeterminate primary rules, few and weak institutions for lawmaking and enforcement and a strong fragmentation without a defining centre. The most convincing example of maintaining the flexibility of international law is the US reluctance to subscribe to supervisory mechanisms or to accede to treaties that have such mechanisms at their core, such as the Rome Statute of the International Criminal Court (ICC).
The US not only indulges in liberties and privileges in establishing a legal order it is not entitled to, enforcing law without having to conform to it, on several occasions it only considered accepting treaties if they mirror US domestic law. In other words, in the US view, international law is subject to US governmental powers and subject specifically to the US constitution. To this end, the US has been able to secure inequality in international law and retain flexibility to perpetuate US national interests. These characteristics have rendered international law as a tool for the powerful in their self-interest, who then take advantage of the lack of clarity in laws that should be equally applicable to all.
There is a precarious law and order, political and security situation in Afghanistan and the inability of the international human rights regime to deliver, coupled with the US’s hegemonic ambitions and unilateral foreign policy decisions, has further aggravated the situation. This has had made the grave human rights implications of the war on terror pretty much inevitable in Asia and beyond. Bush’s legacy of unilateralism and disregard for human rights is being closely followed by Obama, despite grand promises of positive ‘change’.
Even though Guantanamo Bay has been partially closed — even Bagram has become part of a handover plan to local authorities — but regular reports of US army abuse in foreign territories, be it Afghanistan or Iraq, are increasingly receiving condemnation from human rights organisations the world over, reaffirming global scepticism over the US desire to reverse its regime of abuse. It needs to be understood that upholding human rights values as defined in international conventions will serve the long-term interests of the US as well. Acknowledging its structural loopholes, even if the international human rights regime were to be reformed to make it more applicable in the current political situation, the question remains if it will ever be able to enforce itself against a superpower like the US. Would big power players ever feel compelled to uphold universal values at the cost of political self-interest?
Anum Raza Hasan is a freelance journalist and human rights activist with an academic background in International Development. She can be reached at firstname.lastname@example.org