Showing papers in "Northwestern Journal of Human Rights in 2005"

Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates

Abstract: In, “Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates," author Amy Hardberger discusses the reasoning behind establishing access to clean water as a human right. She argues that access to clean water is already considered parallel to other human rights as defined by international law. In the second part of the article, Hardberger reviews human rights, including how they apply to and effect international law. Next, she examines the historical views on water as a human right. Hardberger focuses on how the lack of clean water adversely affects people and how human rights law is an appropriate way to establish the right to clean water. She further explores the role of governments in providing and protecting access to clean water. Finally, Hardberger stresses the importance of an international document which would allow access to water to reach the level of customary international law.

Freedom or Theocracy?: Constitutionalism in Afghanistan and Iraq

Abstract: This article analyzes the claim that the Bush doctrine, the declaration of President George W. Bush in September 2001 that all states harboring terrorists or otherwise supporting terrorism would see their leaders replaced by force, has profoundly advanced the cause of human rights in Afghanistan and Iraq. The article focuses on the constitutional process in Afghanistan, and its thesis is that the Afghan constitution symbolizes the unmistakable liberation of Afghanistan's people from the despotic and even genocidal rule of the Taliban, but that the constitution's many provisions requiring compatibility of government policy with an unspecified code of Islamic law may frustrate democratic demands for respect for international human rights standards and the country's civil law traditions. These provisions are particularly dangerous in the hands of the Afghan religious fundamentalists that have been elevated to prominent positions in the post-Taliban political and legal system. The article proposes four test cases for judging the implementation of Afghanistan's new constitution from the perspective of democracy and individual rights: the treatment of secular political parties, the use of blasphemy laws to undermine Afghan democracy, the revival of fundamentalist punishments such as stoning and amputation, and the ongoing oppression and enslavement of Afghan women and girls. It concludes by drawing parallels between the Afghan constitutional process and the political and legal transition of Iraq from a Baathist dictatorship into a so-called Islamic democracy. As in Afghanistan, the Iraqi government installed by the U.S. and its allies has established Iraq as a religious state with judicial review of legislation for conformity to an unspecified version of Islamic law, and Iraqi women and religious minorities continue to face grave violations of their human rights.

Tortured Logic: The (Il)legality of United States Interrogation Practices in the War on Terror

Abstract: Author's note: This article was written in 2004, before Abu Ghraib, waterboarding, and the so-called "torture memos" had come to light. It examines the legal status of "stress and duress" ("S&D") techniques that were reportedly used at Bagram Air Force Base in Afghanistan and at other undisclosed locations after 9/11. In 2009, President Barack Obama signed Executive Order 13491, prohibiting any U.S. Government agent or agency from using S&D, waterboarding, and other abusive interrogation techniques. ------------------- It has been said of torture that "[n]o other practice except slavery is so universally and unanimously condemned in law and human convention." Perhaps no country embodied this ideal more than the United States. For much of its history, the US shunned torture and other forms of coercive interrogation. Then came September 11th, 2001. The shock of that disaster, coupled with the threat of further attacks by al-Qaeda and the proliferation of nuclear, chemical and biological weapons, fueled an unprecedented re-examination of torture's legal and moral status. As a result, torture and other forms of coercive interrogation quickly lost their stigma in the post 9/11 environment. This growing acceptance of torture and coercive interrogation had real-world consequences. By all accounts, US interrogation policy underwent dramatic changes after September 11th. At the time, these reports raised crucial and unresolved questions about the legality of "moderate" forms of mental and physical coercion generally, and US interrogation practices in particular. Does S&D amount to torture under international and domestic law? If not, does it nevertheless violate important human rights norms? Legality aside, should the US employ harsher methods, as Judge Posner argues, when "the stakes are high enough"? Or is the US committed to a doctrinaire interpretation of human rights, no matter how grave the risk to national security? Are there effective methods of interrogation that are consistent with US law and international human rights? This article analyzes these issues in the context of September 11th and the ongoing war on terror. Section II discusses the recent shift in US interrogation policy, and examines how the unique threat posed by al-Qaeda led the US to consider harsher interrogation techniques. Section III discusses the status of S&D under international law, looking in particular at recent decisions of the European Court of Human Rights and the Supreme Court of Israel. Section IV discusses the legality of S&D under US law. Section V analyzes the legality of US interrogation practices. Section VI evaluates a common hypothetical used to justify S&D: the "ticking time bomb" scenario. Section VII offers my conclusions and recommendations. Although alleged US interrogation practices examined here probably do not rise to the legal definition of torture, they are nevertheless illegal under international and domestic law.