7 January 2005

torturing the truth

UN Convention against Torture
Article 2
Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture.

US Department of Justice Memo Re: Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (PDF)
Torture is abhorrent both to American law and values and to international norms. This universal repudiation of torture is reflected in our criminal law, for example, 18 U.S.C. §§ 23402340A; international agreements, exemplified by the United Nations Convention Against Torture (the "CAT")'; customary international law2; centuries of Anglo-American law3; and the longstanding policy of the United States, repeatedly and recently reaffirmed by the President.4

This Office interpreted the federal criminal prohibition against torture—codified at 18 U.S.C. §§ 2340-2340A—in Standards of Conduct for Interrogation under 18 U.S.C. §§ 23402340A (Aug. 1, 2002) ("August 2002 Memorandum"). The August 2002 Memorandum also addressed a number of issues beyond interpretation of those statutory provisions, including the President's Commander-in-Chief power, and various defenses that might be asserted to avoid potential liability under sections 2340-2340A. See id. at 31 -46.

Rome Statute of the International Criminal Court
Article 2(e)
"Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

Principal object of Act
(1) The principal object of this Act is to facilitate compliance with Australia's obligations under the Statute.

(2) Accordingly, this Act does not affect the primacy of Australia's right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC.

Note: The crimes within the jurisdiction of the ICC are set out as crimes in Australia in Division 268 of the Criminal Code .

Australia signed the Rome Statute on 9 Dec 1998. Australia ratified the Rome Statute on 1 Jul 2002.

That is all very comforting. Except that the lawyers for Mamdou Habib say otherwise.

Documents reveal Habib torture allegations
New detail has emerged about the alleged torture inflicted on Australian terrorism suspect Mamdouh Habib while he was in Egypt.

Mr Habib was captured by US forces in Pakistan in 2001 and was moved to Egypt before being taken to Guantanamo Bay in Cuba.

The ABC has obtained previously sealed court documents in which Mr Habib's lawyers outline allegations of routine torture and beatings while he was in Egypt.

The Sydney man says he was left in rooms filled with water up to his chin, tortured with electrodes during questioning and threatened with dogs.

He says the torture made him give some false confessions.

Mr Habib relayed the claims to his lawyers several weeks ago and they plan to use the information if the US tries to have him returned to Egypt.

Mr Habib's Australia-based lawyer, Stephen Hopper, says the new evidence implicates the Australian Government.

Mr Hopper says the most serious allegation in the documents concerns the involvement of an Australian official in his client's alleged abuse before he was taken to Egypt.

"The Australian officials stood by while what we believe were CIA officials engaged in the type of abuses we've seen at Abu Graib, where Mamdouh Habib's clothes were cut off, he's handcuffed, held down with women around him," he said.

The Bush administration is an enthusiastic practitioner of extraordinary rendition, by which a prisoner is sent to a country whch practices torture. Habib claims he was sent to Egypt and tortured there before his transfer to Guantánamo. The Australian government denied all knowledge of torture in Egypt or elsewhere before the last hearings of the Senate Foreign Affairs estimates committee on 24 May 2003. If Habib's lawyers can substantiate that he was subjected to torture with the knowledge of the Australian government then those responsible are guilty of crimes against humanity and, if not prosecuted in Australia, can be prosecuted before the International Criminal Court.

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