Skip to main content

Dignity Denied: A Case Study

  • 501 Accesses

Abstract

Human dignity is foundational in the international human rights regime. It lays claim to multiple roles within the international political and legal order—the source or rationale of human rights , a goal of the Charter of the United Nations, the ‘ultimate value’ or ‘cornerstone’ of the international legal order, a right in itself and intimately interlinked with an array of other rights, with assessments of the impact of violations and the nature of reparation . The subjugation of human dignity is evident in much counter-terrorism practice in recent years, and epitomised by the case of rendition and torture victim Zayn al Abideen Mohammed al Hussein (Abu Zubaydah) . By reference to diverse philosophical conceptions of dignity and its legal manifestations, this chapter explores the multiple dimensions of human dignity that were and are challenged in deep-rooted and wide-ranging ways by the extraordinary rendition and torture programme and on-going arbitrary detention at Guantánamo. These include the commodification of ‘high value detainees’, the centrality of dehumanisation, treating lives and liberty as dispensable, ‘civil death ,’ and the link between the denial of autonomy , agency and the social dimensions of dignity . It considers in turn the role of reparation and accountability in the restoration of dignity . This extreme case invites us to reflect on the more pervasive neglect of human dignity in counter-terrorism practice and the long-term implications of its demise in the name of human security .

Keywords

  • Dignity
  • Counter-terrorism
  • Rendition
  • Torture
  • Guantánamo
  • Indefinite detention
  • Reparation
  • Accountability
  • Secret detention
  • Enforced disappearance
  • Abu Zubayda

This is a preview of subscription content, access via your institution.

Buying options

Chapter
USD   29.95
Price excludes VAT (USA)
  • DOI: 10.1007/978-94-6265-355-9_5
  • Chapter length: 30 pages
  • Instant PDF download
  • Readable on all devices
  • Own it forever
  • Exclusive offer for individuals only
  • Tax calculation will be finalised during checkout
eBook
USD   149.00
Price excludes VAT (USA)
  • ISBN: 978-94-6265-355-9
  • Instant PDF download
  • Readable on all devices
  • Own it forever
  • Exclusive offer for individuals only
  • Tax calculation will be finalised during checkout
Softcover Book
USD   199.99
Price excludes VAT (USA)
Hardcover Book
USD   199.99
Price excludes VAT (USA)

Notes

  1. 1.

    UN General Assembly (1948) Universal Declaration of Human Rights , UN Doc. A/RES/217 (III), Preamble.

  2. 2.

    UN General Assembly (1993) Vienna Declaration and Programme of Action adopted by The World Conference on Human Rights , UN Doc. A/CONF.157/23.

  3. 3.

    Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945), Preamble.

  4. 4.

    Killmister 2016, p 1087.

  5. 5.

    Donnelly 2009, p 3; Luban 2009, p 212; Killmister 2016, p 1087.

  6. 6.

    Luban 2009, p 212; Valentini 2017, p 863.

  7. 7.

    Hasson 2003, p 83.

  8. 8.

    Arieli 2002, p 1.

  9. 9.

    Some of this is set out in Donnelly 2009, p 10, and elsewhere in this chapter.

  10. 10.

    Petersen 2012, para 37.

  11. 11.

    Bagaric and Allen 2006.

  12. 12.

    See discussion in Straight 2017.

  13. 13.

    Petersen 2012, paras 20–22, on dignity playing dual roles in international law ; as a justification for the human rights regime, as well as particular rights, and as a general principle.

  14. 14.

    Botha 2009, p 171, notes “‘[h]uman dignity ’ has become an integral part of the vocabulary of comparative constitutionalism.”

  15. 15.

    E.g. UN General Assembly (2000) Millennium Declaration, Resolution 55/2, UN Doc. A/RES/55/2; International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR). The ICCPR and the ICESCR follow the lead of UN General Assembly (1948) Universal Declaration of Human Rights , UN Doc. A/RES/217 (III) in recognising the “inherent dignity ” of human beings in each’s respective Preamble. Dignity is also referenced in the substantive articles, e.g. Article 1 of the Universal Declaration of Human Rights , which recognises that “[a]ll human beings are born free and equal in dignity and rights”, and Article 10 of the ICCPR which guarantees that all persons deprived of liberty will be “treated with humanity and with respect for the inherent dignity of the human person”. By contrast Article 5 of the African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986) (ACHPR) guarantees respect for dignity as such, while the Article 11 of the American Convention on Human Rights , opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (ACHR) refers to it in other provisions, e.g. on prisoners’ rights, labour rights and the right to have honour and dignity recognised. See also Protocol No. 13 to the European Convention on Human Rights concerning the Abolition of the Death Penalty in All Circumstances, opened for signature 3 May 2002, ETS 187 (entered into force 1 July 2003).

  16. 16.

    Foster 2011, p 61.

  17. 17.

    European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (ECHR).

  18. 18.

    ECtHR, Abu Zubaydah v Lithuania, Judgment, 31 May 2018, Application No. 46454/11 (Zubaydah 2018), para 664 citing ECtHR, Pretty v The United Kingdom , Judgment, 29 April 2002, Application No. 2346/02, para 65.

  19. 19.

    According to Antoine Buyse, the ECtHR has referred to dignity in 876 cases, mostly arising in relation to the right to life , the prohibition of torture and the prohibition of slavery and servitude, but also private life, corporal punishment , extended divorce proceedings and the death of a foetus. See Buyse 2016.

  20. 20.

    UN Human Rights Committee (2018) General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life , UN Doc. CCPR/C/GC/36. This is reflected in the jurisprudence of the Inter-American system and Indian Supreme Court for example.

  21. 21.

    Gearty 2013; Goldewijk et al. 2002. For an example of dignity within economic and social rights litigation in South Africa, see South African Constitutional Court, Minister of Health and Others v Treatment Action Campaign and Others, Judgment, 5 July 2002, Case No. CCT 8/02.

  22. 22.

    E.g. UN Secretary-General 2014.

  23. 23.

    E.g. Killmister 2016, p 1087, on dignity as a justification for the human rights regime generally, and as a way to describe the harm of particular human rights violations. Petersen 2012, para 16, suggests that the references to dignity by the ECtHR are used to highlight the gravity of the violation, rather than using dignity as a clearly defined legal concept. Nevertheless, the Chamber in ECtHR, Tyrer v The United Kingdom , Judgment, 25 April 1978, Application No. 5856/72, para 33 stated that in relation to the prohibition on torture and inhuman and degrading treatment, “one of the main purposes of Article 3 […] [is] to protect […] a person’s dignity and physical integrity”.

  24. 24.

    Rome Statute of the International Criminal Court, opened for signature 17 July 19998, 2187 UNTS 90 (entered into force 1 July 2002), Articles 8(2)(b)(xxi) and 8(2)(c)(ii).

  25. 25.

    Common Article 3 of the Geneva Conventions. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).

  26. 26.

    Rosen relies on the protection of dignity within the Geneva Conventions to suggest that the obligation to respect the dignity of others and to have one’s own dignity respected is a right in and of itself. See Rosen 2012, p 60.

  27. 27.

    Donnelly 2009, p 11.

  28. 28.

    Luban 2009: “the world’s nations have reached an overlapping consensus on the central importance of human dignity , in which each culture and subculture may tell its own story about what human dignity is and where it comes from.”

  29. 29.

    US Senate Select Committee on Intelligence 2014; ECtHR, Husayn (Abu Zubaydah) v Poland, Judgment, 24 July 2014, Application No. 7511/13 (Zubaydah 2014); Zubaydah 2018, above n 18. For an overview of the legal issues from the rendition programme, see Duffy 2015, Chapter 10.

  30. 30.

    Interview with US Vice-President Cheney on Meet the Press (16 September 2001). See Human Rights Watch 2005, p 9.

  31. 31.

    US Senate Select Committee on Intelligence 2014, p 22.

  32. 32.

    Ibid.

  33. 33.

    Ibid., p 12.

  34. 34.

    Council of Europe Parliamentary Assembly 2007, Draft Resolution, para 1.

  35. 35.

    Thomas Hammarberg quoted in RT News (2011) Who takes the rap for rendition ?

    https://www.rt.com/news/hammarberg-cia-prisons-guantanamo-861/. Accessed 13 December 2018.

  36. 36.

    Council of Europe Parliamentary Assembly 2007, paras 179, 186. Thomas Hammarberg noted the rendition programme had been “carefully and deliberately covered up” by many other States. See CBS News (2011) Rights Chief: Europe “Complicit” in US Torture . https://www.cbsnews.com/news/rights-chief-europe-complicit-in-us-torture//. Accessed 13 December 2018.

  37. 37.

    Currier 2012.

  38. 38.

    E.g. two individuals involved in the programme have published books: Jose A. Rodriguez Jnr. Hard Measures in 2012 (Rodriguez toured internationally promoting the book) and James Mitchell Enhanced Interrogation in 2016. As one commentator noted “we don’t put torturers on trial, we put them on book tours.” Pierce C (2012) Waterboards, Drones, and the Drones Who Love Them. https://www.esquire.com/news-politics/politics/a13865/jose-rodriguez-cia-book-8484289/. Accessed 18 December 2018.

  39. 39.

    US Senate Select Committee on Intelligence 2014. See also supplementary information in Raphael et al. 2019.

  40. 40.

    Duffy 2018, Chapter 7.

  41. 41.

    Zubaydah 2014, above n 29; Zubaydah 2018, above n 18. The author represented Abu Zubaydah in ECtHR proceedings.

  42. 42.

    As the first victim of rendition programme, copious information documents his torture , the lies and misinformation shared about and Abu Zubaydah’s treatment therein, some of which is noted in this brief chapter. See the US Senate Select Committee on Intelligence 2014, which had 1,001 references to him.

  43. 43.

    Abu Zubaydah 2018, above n 18, para 84; Duffy 2015, Chapter 10.

  44. 44.

    See Duffy 2015, Chapter 10 for a breakdown of forms of responsibility and legal issues arising.

  45. 45.

    Bowcott O (2019) Police investigating role of UK officers in torture of al-Qaida suspect. https://www.theguardian.com/law/2019/mar/31/police-investigating-role-of-uk-officers-in-torture-of-al-qaida-suspect. Accessed 10 May 2019. Raphael et al. 2019, pp 41–43.

  46. 46.

    Above n 1.

  47. 47.

    Above n 15.

  48. 48.

    Wolbert 2007, p 167; Killmister 2016, p 1088.

  49. 49.

    Kant 1999, p 148 stating that human beings

    existe comme fin en soi, et non pas simplement comme moyen dont telle ou telle volonté puisse user à son gré; dans toutes ses actions, aussi bien dans celles qui le concernent lui-même que dans celles qui concernent d’autres êtres raisonnables, il doit toujours être considéré en même temps comme fin” [exists as an end in themselves, and not simply as a means by which this or that can be pursued; in all his actions, both in those concerning himself and in those concerning other reasonable beings, he must always be considered at the same time as an end].

  50. 50.

    Scheinin 2010, p 600.

  51. 51.

    German Constitutional Court, Judgment, 21.06.1977, 45 BVerfGE 187 (Life Imprisonment case) cited in Kommers 1997, p 308.

  52. 52.

    Wolbert 2007, p 167.

  53. 53.

    US Senate Select Committee on Intelligence 2014, p 16. The Salim civil litigation in the US provided details in relation to the psychologists Jessen and Mitchell alleged to have contributed to the design of the enhanced interrogation techniques . See also decisions of US Ninth Circuit Court of Appeal, Husayn v Mitchell and Jessen, Opinion, 18 September 2019, Case No. 18-35218, denying state secrecy as a basis to preclude Mitchell and Jessen being subpoenaed.

  54. 54.

    Killmister 2016, p 1088; Ignatieff 2004, p 140.

  55. 55.

    Wolbert 2007, p 173 suggests that it is not possible to weigh the idea of human dignity against something else, and on this basis the prohibition against torture could not be waived in the event of an emergency.

  56. 56.

    Waldron 2005, pp 1727, 1739.

  57. 57.

    Ibid., pp 1745–1746.

  58. 58.

    Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); ICCPR, above n 15, Article 7; ACHR, above n 15, Article 5(2); ACHPR, above n 15, Article 5; ECHR, above n 17, Article 3.

  59. 59.

    Luban 2009, pp 449–450.

  60. 60.

    See, e.g., US Senate Select Committee on Intelligence 2014, p 4; DePillis L (2014) This is how it feels to torture . https://www.washingtonpost.com/news/storyline/wp/2014/12/11/this-is-how-it-feels-to-torture/?utm_term=.107477c8fb0f. Accessed 18 December 2018.

  61. 61.

    Center for Victims of Torture 2015.

  62. 62.

    Leopold J (2010) Torture Diaries, Drawings and the Special Prosecutor. https://truthout.org/articles/torture-diaries-drawings-and-the-special-prosecutor/. Accessed 13 December 2018.

  63. 63.

    This appeared in relation to Department of Defense and CIA detention. See, e.g., US Senate Committee on Armed Services 2008, which reflects Department of Defense memos recording detainees being forced to “bark and perform dog tricks”, a training which recommended “stripping the individual, having the guards address the individual as if that person were an ‘animal’”.

  64. 64.

    E.g. President Trump was criticised for his reference to terrorist suspects (following the London 2018 attacks) as “animals”. For recent justifications of torture within the US administration, see, e.g., UNC School of Law Human Rights Policy Lab 2017.

  65. 65.

    UNC School of Law Human Rights Policy Lab 2017 emphasises islamophobia as a crucial dimension of the rendition programme and post-9/11 abuse in the counter-terrorism context. See also Duffy 2015, Chapter 7.

  66. 66.

    ICRC 2007, p 26.

  67. 67.

    See CCPR, María del Carmen Almeida de Quinteros et al. v Uruguay, Views, 15 October 1982, Communication No. 107/1981 (Quinteros), para 14. See also CCPR, El-Megreisi v Libyan Arab Jamahiriya, Views, 24 March 1994, Communication No. 440/1990, paras 2.1–2.5; CCPR, Mojica v Dominican Republic, Views, 10 August 1994, Communication No. 449/1991, para 5.7; IACtHR, Velásquez Rodríguez Case, Judgment, 29 July 1988, IACtHR Series C No 4, para 187.

  68. 68.

    See UN Economic and Social Council (1983) Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. E/CN.4/1983/14, para 131 which notes that “the very fact of being detained as a disappeared person, isolated from one’s family for a long period is certainly a violation of the right to humane conditions of detention and has been represented to the Group as torture .”

  69. 69.

    Zubaydah 2018, above n 18, para 552.

  70. 70.

    Ibid., paras 549, 640.

  71. 71.

    US Senate Select Committee on Intelligence 2014, pp 4, 40; US Central Intelligence Agency 2003; US Department of Justice Office of Legal Counsel 2004. See also reports by Jessen cited in Siems L (2017) Inside the CIA ’s black site torture room. https://www.theguardian.com/us-news/ng-interactive/2017/oct/09/cia-torture-black-site-enhanced-interrogation. Accessed 13 May 2019.

  72. 72.

    Ibid. At first the use of ‘enhanced interrogation techniques ’ on Abu Zubaydah and others were authorised orally, but on 1 August 2002, the US Department of Justice issued a memorandum, authorising in writing the use of ten identified ‘enhanced interrogation techniques ’, and provided general guidelines for determining the lawfulness of additional enhanced interrogation techniques . See US Department of Justice Office of the Assistant Attorney General 2002, Part III.

  73. 73.

    US Department of Justice Office of the Principal Deputy Assistant Attorney General 2005, pp 12–14.

  74. 74.

    US Senate Select Committee on Intelligence 2014, p 29.

  75. 75.

    The quote continues “[…] and 29 hours in a small confinement box, which had a width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet. […] The CIA interrogators told Abu Zubaydah that the only way he would leave the facility was in the coffin-shaped confinement box.” Ibid., p 42.

  76. 76.

    US Senate Select Committee on Intelligence 2014, p 86.

  77. 77.

    Ibid., p 3.

  78. 78.

    Ibid., p 40.

  79. 79.

    Ibid., p 3.

  80. 80.

    E.g. Al Asad 2011, para 14.

  81. 81.

    E.g. ibid., footnote 584: “Abu Zubaydah’s treatment also included, for example, sexual violence […] and the deliberate withholding of medical treatment leading to permanent physical damage as an interrogation tactic.”

  82. 82.

    Ibid., p 100.

  83. 83.

    Descriptions in exchanges between guards and psychologists noted as a matter of fact that after a certain point “all of the prisoners shake” at the Afghan site which did not seem to be consider unusual. See Siems L (2017) Inside the CIA ’s black site torture room. https://www.theguardian.com/us-news/ng-interactive/2017/oct/09/cia-torture-black-site-enhanced-interrogation. Accessed 13 May 2019. The same psychologists extolled the virtues of the programme and the enhanced interrogation techniques . See, e.g., Director of Central Intelligence 2016.

  84. 84.

    US Central Intelligence Agency 2002, p 41: e.g. “[a]t the onset of involuntary stomach and leg spasms, subject was again elevated to clear his airway, which was followed by hysterical pleas. Subject was distressed to the level that he was unable to effectively communicate or adequately engage the team.”

  85. 85.

    US Senate Select Committee on Intelligence 2014, p 42. He was reportedly cooperative when detained, and interrogators assessed it was their “collective preliminary assessment” that he had no additional information; the cable exchange shows despite growing concerns that it was “highly unlikely” he had any information, they were repeatedly told to continue. This in turn was based on erroneous information that he was trained to resist interrogation .

  86. 86.

    US Senate Select Committee on Intelligence 2014, p 2. This contributes to the Committee’s first finding that “based on a review of CIA interrogation records […] the use of the CIA ’s enhanced interrogation techniques was not an effective means of obtaining accurate information.”

  87. 87.

    US Senate Select Committee on Intelligence 2014, p 34.

  88. 88.

    Ibid., refers to “bubbles rising through his open, full mouth.”

  89. 89.

    US Senate Select Committee on Intelligence 2014, p 54.

  90. 90.

    E.g. Suleiman Abdullah whose suicide attempt is recorded in these terms in Raphael et al. 2019, p 21.

  91. 91.

    The Senate Report cites also the reply cable: US Senate Select Committee on Intelligence 2014, p 35.

  92. 92.

    Ibid.

  93. 93.

    Note how the associated debate has focused on dignity . See, e.g., De Beco 2005, p 414.

  94. 94.

    Luban 2009, pp 447–448.

  95. 95.

    Life Imprisonment case, above n 51, cited in Kommers 1997, pp 305–311.

  96. 96.

    Kommers 1997, p 309.

  97. 97.

    Ibid., p 310.

  98. 98.

    German Constitutional Court, Judgment, 24.04.1986, 72 BVerfGE 105 cited in Kommers 1997, pp 311–312.

  99. 99.

    ECtHR, Vinter and Others v The United Kingdom , Grand Chamber Judgment, 9 July 2013, Application Nos. 66069/09, 130/10, 3896/10, paras 15–28, 110, 113; ECtHR, Kafkaris v Cyprus, Grand Chamber Judgment, 12 February 2008, Application No. 21906/04, para 97. See also ECtHR, Trabelsi v Belgium , Judgment, 4 September 2014, Application No. 140/10, paras 112–115, 137, stating that “the imposition of an irreducible life sentence” may violate Article 3 of the ECHR, depending upon “whether a life prisoner can be said to have any prospect of release” including processes to establish whether “progress had been made towards rehabilitation”. See also IACtHR, Mendoza et al. v Argentina, Judgment, 14 May 2013, IACtHR Series C No. 260, para 315 where the Inter-American Court of Human Rights found the imposition of life imprisonment on juveniles to constitute a breach of the ACHR, noting State responsibility for “restoring human dignity ”. Life imprisonment is prohibited in several constitutions, including in Latin America, reflected in e.g. the Inter-American Convention on Extradition, opened for signature 25 February 1981, OASTS 60 (entered into force 28 March 1992), Article 9. For an analysis, see, e.g., Public International Law & Policy Group Netherlands 2016; Valeska and Fraser 2015, p 551.

  100. 100.

    E.g. in the context of the equality rights, gender recognition has been recognised as, inter alia, about dignity , while discrimination , in some circumstances, as a factor leading to treatment being considered per se degrading.

  101. 101.

    Zubaydah 2018, above n 18, para 656.

  102. 102.

    The International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS 3, (entered into force 23 December 2010) defines disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” See e.g. UN General Assembly (2010) Human Rights Council: Joint study on global practices in relation to secret detention in the context of countering terrorism of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism , Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment , Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-chair, Shaheen Sardar Ali; and the Working Group on Enforced or Involuntary Disappearances represented by its Chair, Jeremy Sarkin, UN Doc. A/HRC/13/42, para 28: “[e]very instance of secret detention also amounts to a case of enforced disappearance”. Zubaydah 2018, above n 18, para 656.

  103. 103.

    UN General Assembly (1992) Declaration on the Protection of all Persons from Enforced Disappearance, UN Doc. A/RES/47/133, Article 1.

  104. 104.

    ICRC 2007. See, e.g., Quinteros, above n 67, para 14; ECtHR, Varnava and Others v Turkey, Grand Chamber Judgment, 18 September 2009, Application Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90, 16073/90, paras 200–202; ECtHR, Tanis and Others v Turkey, Judgment, 2 August 2005, Application No. 65899/01, para 219; ECtHR, Cyprus v Turkey, Grand Chamber Judgment, 10 May 2001, Application No. 25781/94, paras 155–8; ECtHR, Kurt v Turkey, Judgment, 25 May 1998, Application No. 15/1997/799/1002, para 134; Human Rights Chamber for Bosnia and Herzegovina, Avdo and Esma Palić v Republika Srpska, Decision on Admissibility and Merits, 11 January 2001, Case No. CH/99/3196, paras 79–80.

  105. 105.

    See, e.g., ECtHR, Bazorkina v Russia , Judgment, 27 July 2006, Application No. 69481/01. See also ICRC 2007.

  106. 106.

    Beccaria 1986, who rejected the idea of criminal justice that treated human beings as objects and as sources of information. See above Sect. 5.3.3 on the related issue of the commodification of the individual.

  107. 107.

    Klein 2002, p 148.

  108. 108.

    Bo 2014, p 3.

  109. 109.

    Beitz 2013, p 289.

  110. 110.

    The Confucian view of human persons as capable of realising ‘Ren’, the highest Confucian moral ideal, means certain ability or disposition to care for and sympathise with others. See Chan 2014, p 118. See also Killmister 2016, pp 1087–1101.

  111. 111.

    Fukuyama F (2012) The Drive for Dignity . https://foreignpolicy.com/2012/01/12/the-drive-for-dignity/. Accessed 13 December 2018.

  112. 112.

    Raphael et al., p 79.

  113. 113.

    Reflected in CIA cables setting out the detention and interrogation in detail. See US Senate Select Committee on Intelligence 2014, p 28.

  114. 114.

    The negative effects of solitary confinement are well documented, and such confinement on a prolonged basis amounts to torture . Numerous reports record the long-term psychological impact of the rendition programme on victims. See, e.g., International Bar Association 2009, para 1.29; American Psychological Association 2007; Weissman et al. 2017, p 7.

  115. 115.

    Zubaydah 2014, above n 29, para 80.

  116. 116.

    The US Senate Select Committee on Intelligence lays bare the deliberate and repeated efforts by US Government officials to mislead the public and various oversight bodies about Abu Zubaydah. The CIA provided inaccurate information to the Office of Legal Counsel on Abu Zubaydah’s status within al-Qaeda, its certainty that Abu Zubaydah was withholding information. CIA reports acknowledge also that he was “miscast” as a senior terror leader and that claims about his involvement with al Qaeda were “inaccurate”. US Senate Select Committee on Intelligence 2014, pp 5, 21. See also “misconceptions” about Abu Zubaydah as a senior al Qaeda lieutenant. Ibid., pp 466, 410: “Abu Zubaydah was not a member of al Qaeda”.

  117. 117.

    E.g. Former Vice President Cheney described prisoners this way. See NBC News (2009) Cheney: Gitmo Holds “Worst of the Worst”: Former Vice President Says Killing Suspects was Only Other Option. www.nbcnews.com/id/31052241/ns/world_news-terrorism/t/cheney-gitmo-holds-worst-worst/#.XBOpbmhKg2w. Accessed 13 December 2018.

  118. 118.

    Open Society Justice Initiative 2003; Duffy 2015, Chapter 10.

  119. 119.

    Lewis P (2014) Obama admits CIA “tortured some folks” but stands by Brennan over spying. www.theguardian.com/world/2014/aug/01/obama-cia-torture-some-folks-brennan-spying. Accessed 13 December 2018.

  120. 120.

    Duffy 2018, Chapter 7, p 157.

  121. 121.

    See, e.g., The Guardian (2019) UK spent £11m of public money fighting Libya rendition case: Figures show vast sums spent resisting apology demands over rendition of Libyan dissidents. https://www.theguardian.com/world/2019/apr/24/uk-public-money-fighting-libya-rendition-case-abdel-hakim-belhaj-fatima-boudchar. Accessed 29 July 2019.

  122. 122.

    Poynting 2016, p 208 referring to ECtHR, Babar Ahmad and Others v The United Kingdom , Judgment, 10 April 2012, Application Nos. 24027/07, 11949/08, 36742/08, 66911/09, 67354/09, and failure to address his alleged torture as implicatory denial.

  123. 123.

    Feinberg 1966, p 143.

  124. 124.

    “[I]guales posibilidades para alcanzar una capacidad madura que le permita hacer uso de sus derechos y articular argumentativamente sus demandas.” Guariglia 1994, p 186 (translation by the author).

  125. 125.

    On the various impacts of human rights litigation, see Duffy 2018, Chapters 3 and 4, and, in the counter-terrorism context, Chapter 7, pp 157–165.

  126. 126.

    For a detailed account of the Salim case against Mitchell and Jessen, see American Civil Liberties Union (2017) Salim v Mitchell – lawsuit against psychologists behind CIA torture program. https://www.aclu.org/cases/salim-v-mitchell-lawsuit-against-psychologists-behind-cia-torture-program. Accessed 13 December 2018. See for a brief discussion Duffy 2018, Chapter 7.

  127. 127.

    See Sect. 5.3.7: the only legal avenue he has been able to access thus far has been international human rights litigation.

  128. 128.

    Zubaydah 2014, above n 29, paras 552–559.

  129. 129.

    For a fuller discussion of impact, see Duffy 2018, Chapter 7.

  130. 130.

    Duffy 2015, Chapter 10. It also potentially falls within the jurisdiction of the ICC if domestic options continue to fail.

  131. 131.

    See, e.g., Duffy 2014, p 328; Johnston D, C Savage (2004) Obama Reluctant to Look Into Bush Programs. www.nytimes.com/2009/01/12/us/politics/12inquire.html?pagewanted=all&_r=0. Accessed 13 December 2018.

  132. 132.

    The cases are subject to supervision by the Council of Europe Committee of Ministers, which has called on both States to report on measures of investigation , accountability and outreach to the US.

  133. 133.

    The Parliamentary Assembly of the Council of Europe has acknowledged the “intolerable impediment to the independence of justice” in relation to the trial of the kidnappers of Abu Omar, that has been hindered by the obstacle of State secrecy . Council of Europe Parliamentary Assembly 2007, Draft Resolution, para 14.

  134. 134.

    The New York Times (2012) No Penalty for Torture . www.nytimes.com/2012/09/05/opinion/no-penalty-for-torture.html. Accessed 13 December 2018.

  135. 135.

    E.g. indicating that “a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering”, albeit it in discredited legal advice entirely alien to international law standards. US Department of Justice Office of the Assistant Attorney General 2002, p 4.

  136. 136.

    US Senate Select Committee on Intelligence 2014, p 35.

  137. 137.

    UN General Assembly (2006) The United Nations Global Counter-Terrorism Strategy, UN Doc. A/RES/60/288, pp 2, 4, 9.

  138. 138.

    So far as dignity reflects the inherent value of human life, there is a debate among moral philosophers, sometimes reflected in judgments and legal argument, as to whether states can really deprive someone of dignity. See, e.g., the controversial comments of J. Clarence Thomas that “[t]he government cannot bestow dignity, and it cannot take it away” (US Supreme Court, Obergefell v Hodges, Decision, 26 June 2015, Case No. 14-556, Dissenting Opinion of Justice Thomas, p 15).

  139. 139.

    UN Human Rights Committee (2018) General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life , UN Doc. CCPR/C/GC/36.

  140. 140.

    See, e.g., US Senate Select Committee on Intelligence 2014, p 4; DePillis L (2014) This is how it feels to torture . https://www.washingtonpost.com/news/storyline/wp/2014/12/11/this-is-how-it-feels-to-torture/?utm_term=.107477c8fb0f. Accessed 18 December 2018.

  141. 141.

    See, e.g., discussion with Juan Mendez and Keith Carmichael in Mbe VS (2012) Torture . https://thoughteconomics.com/torture/. Accessed 29 July 2019.

  142. 142.

    E.g. UN General Assembly (2006) The United Nations Global Counter-Terrorism Strategy, UN Doc. A/RES/60/288 underscored the mutually reinforcing nature of the relationship between respect for basic human rights and security; the role of injustice (real and perceived) in fomenting terrorism has been widely acknowledged. For example Obama was among those who famously referred to Guantánamo as a ‘recruitment tool for al Qaeda’, while studies on foreign terrorist fighters suggest perceptions of injustice as among the ‘push and pull’ factors. See, e.g., Duffy 2015, Chapter 7; Organization for Security and Co-operation in Europe 2018.

References

Articles, Books and Other Documents

Case Law

  • CCPR, María del Carmen Almeida de Quinteros et al. v Uruguay, Views, 15 October 1982, Communication No. 107/1981

    Google Scholar 

  • CCPR, El-Megreisi v Libyan Arab Jamahiriya, Views, 24 March 1994, Communication No. 440/1990

    Google Scholar 

  • CCPR, Mojica v Dominican Republic, Views, 10 August 1994, Communication No. 449/1991

    Google Scholar 

  • ECtHR, Tyrer v The United Kingdom, Judgment, 25 April 1978, Application No. 5856/72

    Google Scholar 

  • ECtHR, Kurt v Turkey, Judgment, 25 May 1998, Application No. 15/1997/799/1002

    Google Scholar 

  • ECtHR, Cyprus v Turkey, Grand Chamber Judgment, 10 May 2001, Application No. 25781/94

    Google Scholar 

  • ECtHR, Pretty v The United Kingdom, Judgment, 29 April 2002, Application No. 2346/02

    Google Scholar 

  • ECtHR, Tanis and Others v Turkey, Judgment, 2 August 2005, Application No. 65899/01

    Google Scholar 

  • ECtHR, Bazorkina v Russia, Judgment, 27 July 2006, Application No. 69481/01

    Google Scholar 

  • ECtHR, Kafkaris v Cyprus, Grand Chamber Judgment, 12 February 2008, Application No. 21906/04

    Google Scholar 

  • ECtHR, Varnava and Others v Turkey, Grand Chamber Judgment, 18 September 2009, Application Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90, 16073/90

    Google Scholar 

  • ECtHR, Babar Ahmad and Others v The United Kingdom, Judgment, 10 April 2012, Application Nos. 24027/07, 11949/08, 36742/08, 66911/09, 67354/09

    Google Scholar 

  • ECtHR, Vinter and Others v The United Kingdom, Grand Chamber Judgment, 9 July 2013, Application Nos. 66069/09, 130/10, 3896/10

    Google Scholar 

  • ECtHR, Husayn (Abu Zubaydah) v Poland, Judgment, 24 July 2014, Application No. 7511/13

    Google Scholar 

  • ECtHR, Trabelsi v Belgium, Judgment, 4 September 2014, Application No. 140/10

    Google Scholar 

  • ECtHR, Abu Zubaydah v Lithuania, Judgment, 31 May 2018, Application No. 46454/11

    Google Scholar 

  • German Constitutional Court, Judgment, 21.06.1977, 45 BVerfGE 187

    Google Scholar 

  • German Constitutional Court, Judgment, 24.04.1986, 72 BVerfGE 105

    Google Scholar 

  • Human Rights Chamber for Bosnia and Herzegovina, Avdo and Esma Palić v Republika Srpska, Decision on Admissibility and Merits, 11 January 2001, Case No. CH/99/3196

    Google Scholar 

  • IACtHR, Velasquez Rodriguez v Honduras, Judgment, 29 July 1988, IACtHR Series C No. 4

    Google Scholar 

  • IACtHR, Mendoza et al. v Argentina, Judgment, 14 May 2013, IACtHR Series C No. 260

    Google Scholar 

  • South African Constitutional Court, Minister of Health and Others v Treatment Action Campaign and Others, Judgment, 5 July 2002, Case No. CCT 8/02

    Google Scholar 

  • US Ninth Circuit Court of Appeal, Husayn v Mitchell and Jessen, Opinion, 18 September 2019, Case No. 18-35218

    Google Scholar 

  • US Supreme Court, Obergefell v Hodges, Decision, 26 June 2015, Case No. 14-556

    Google Scholar 

Treaties

  • African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986)

    Google Scholar 

  • American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978)

    Google Scholar 

  • Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945)

    Google Scholar 

  • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

    Google Scholar 

  • European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953)

    Google Scholar 

  • Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950)

    Google Scholar 

  • Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950)

    Google Scholar 

  • Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950)

    Google Scholar 

  • Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950)

    Google Scholar 

  • Inter-American Convention on Extradition, opened for signature 25 February 1981, OASTS 60 (entered into force 28 March 1992)

    Google Scholar 

  • International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010)

    Google Scholar 

  • International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

    Google Scholar 

  • International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976)

    Google Scholar 

  • Protocol No. 13 to the European Convention on Human Rights concerning the Abolition of the Death Penalty in All Circumstances, opened for signature 3 May 2002, ETS 187 (entered into force 1 July 2003)

    Google Scholar 

  • Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002)

    Google Scholar 

Download references

Acknowledgements

I am very grateful to Human Rights in Practice Research Assistant Taylor Woodcock for her help with the preparation of this chapter, and to my late father-in-law, philosopher Osvaldo Guariglia, whose presence I felt (and counsel I missed) while writing.

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Helen Duffy .

Editor information

Editors and Affiliations

Rights and permissions

Reprints and Permissions

Copyright information

© 2020 T.M.C. Asser Press and the authors

About this chapter

Verify currency and authenticity via CrossMark

Cite this chapter

Duffy, H. (2020). Dignity Denied: A Case Study. In: Paulussen, C., Scheinin, M. (eds) Human Dignity and Human Security in Times of Terrorism. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-355-9_5

Download citation

  • DOI: https://doi.org/10.1007/978-94-6265-355-9_5

  • Published:

  • Publisher Name: T.M.C. Asser Press, The Hague

  • Print ISBN: 978-94-6265-354-2

  • Online ISBN: 978-94-6265-355-9

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)