On February 18, the Biden administration announced the conclusion of what Secretary of State Antony Blinken called a “careful analysis of the law and available facts”—that Russian forces have committed crimes against humanity in Ukraine. This comes on top of its previous assessment that Russian forces are committing extremely grave war crimes in Ukraine. The White House is committed to leading global efforts to hold accountable those responsible for these atrocities, including, if the evidence warrants, Russian President Vladimir Putin, consistent with the dictates of international law.
But to be an effective leader in these efforts, the United States must honor its own international legal obligations, including under the Convention against Torture, to which it is a State Party. Of particular importance today, the United States must fulfill its obligation under Article 14 of the convention, which states unequivocally: “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.” As the plain text of the convention makes clear, there is no circumstance in which torture is justified or the obligation to provide rehabilitation services does not apply.
There is an urgent need to meet the United States’ obligation to provide “as full rehabilitation as possible” to those now detained on Guantánamo who are suffering the results of torture inflicted on them by the United States government and who have no real prospect of being set free. Bare statements by the United States in its 2021 submission to the Committee Against Torture that the CIA’s torture program “was ended in 2009” do not change the ongoing CAT obligation to provide full rehabilitation. Nor does the fact that “the law of war does not provide detained persons with a judicially enforceable individual right to a claim for monetary compensation against the detaining power for alleged unlawful conduct” change the nature of the U.S. obligation to rehabilitate those still suffering from the consequences of past torture, which is equally applicable alongside U.S. law of war obligations.
The fact that these men were tortured was established in the 2014 report of the Senate Select Committee on Intelligence, as was the fact that they are suffering serious physical and mental health consequences of brutal and harsh treatment.
The men exhibit the cumulative impacts of repeated head injuries caused by walling, sleep deprivation, beating and shackling, waterboarding, hooding, isolation, and white noise. Some suffer ongoing effects from rape. And many suffer with an array of symptoms and impairments indicative of posttraumatic stress disorder, traumatic brain injury, and comorbidities with sleep disorders, chronic pain, anxiety, depression, and cognitive impairment. The United States’ legal as well as moral obligation is to provide appropriate medical treatment now, and not make these men continue to wait until they are free. Indeed, unless the Biden administration prioritizes bringing the long-stalled military commissions cases to a close, some may never be released from their imprisonment: there is no end in sight for their court cases and no evident path to release.
Providing high-quality healthcare to those detainees at Guantánamo who have been tortured and subjected to other brutal and harsh tactics requires more than just customary or routine care. Some detainees have developed serious illnesses and require complicated neurosurgical and cardiac interventions. The consequences of torture have produced other serious problems and symptoms. These men will likely suffer with progressive impairments and disabilities for the rest of their lives.
No doubt, many Americans feel that these detainees, some of whom perpetrated extreme violence again our citizens and country, should just be left to live out their lives out of view. While understandable, however, acting on this attitude would violate basic ethical precepts as well as explicit treaty obligations. What is required is designing and implementing comprehensive healthcare and rehabilitation. The costs and infrastructure are reasonable and practical.
Setting up such healthcare services is not only our legal duty; it is also essential to our ability to provide credible leadership in the Biden administration’s efforts to hold Russia accountable for its aggression in Ukraine, as well as individual Russians for their war crimes and crimes against humanity.
This is more than a talking point: All too often, we have seen that the United States’ ability to rally support for its vital foreign policy positions has suffered when other countries believe our government is advancing a position it has failed to observe in its own practices.