The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions
by Jordan J. Paust
April 9, 2009
Valparaiso University Law Review, Vol. 43
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.
I. THE PEREMPTORY PROHIBITION
Torture is a form of treatment of human beings that is absolutely prohibited under various forms of customary and treaty-based international law in all social contexts. [1] Other forms of treatment that are absolutely prohibited and often proscribed in the same international instruments that outlaw torture include prohibitions of cruel, inhumane, and degrading treatment. [2] Additionally, each form of ill-treatment constitutes a violation of peremptory rights and prohibitions jus cogens [3] that trumps any inconsistent portion of an international agreement and more ordinary forms of customary international law. [4] These forms of ill-treatment can never constitute lawful public acts by any state or public official. Furthermore, as customary rights and prohibitions jus cogens, each right and prohibition applies universally and without any attempted limitations in reservations with respect to a particular treaty. [5] As customary human rights prohibitions, they also apply universally and in all social contexts as part of the legal obligation of all members of the United Nations under the United Nations Charter to ensure “universal respect for, and observance of, human rights. . . .” [6]
In December 2007, the United Nations General Assembly reaffirmed nearly unanimous and consistent patterns of legal expectation or opinio juris, [7] stating that “no one shall be subjected to torture or to other cruel, inhuman or degrading treatment or punishment[;]” [8] that freedom from such unlawful treatment “is a non-derogable right that must be protected under all circumstances, including in times of international or internal armed conflict or disturbance[;]” [9] and, that “a number of international, regional and domestic courts . . . have recognized that the prohibition of torture is a peremptory norm of international law and have held that the prohibition of cruel, inhuman or degrading treatment or punishment is customary international law[.]” [10] Stressing the absolute prohibition of torture and other outlawed forms of ill-treatment, the General Assembly condemned “all forms” of such “treatment or punishment, including . . . intimidation,” and reiterated the fundamental expectation of the international community that such forms of ill-treatment “are and shall remain prohibited at any time and in any place whatsoever and can thus never be justified[.]” [11] One year earlier, the General Assembly had reaffirmed that “States are under the obligation to protect all human rights and fundamental freedoms of all persons[]” [12] and that “States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular[,] international human rights, refugee and humanitarian law[.]” [13]
II. CRIMES OF TORTURE AND SANCTION DUTIES
With respect to the obligation of every state to enforce such rights and prohibitions and the criminal nature of such forms of ill-treatment, the General Assembly has condemned “any action or attempt . . . to legalize, authorize or acquiesce in torture and other cruel, inhuman or degrading treatment . . . under any circumstances, including on grounds of national security or through judicial decisions[.]” [14] The General Assembly stressed that allegations that such forms of ill-treatment have occurred “must be promptly and impartially examined . . . [and with respect to nonimmunity and the duty to prosecute,] those who encourage, order, tolerate or perpetrate acts of torture must be held responsible, brought to justice . . . and severely punished, including the officials in charge of the place of detention[.]” [15] The General Assembly also emphasized that during armed conflict “acts of torture . . . are serious violations of international humanitarian law and . . . constitute war crimes[]” and that perpetrators “must be prosecuted and punished[.]” Moreover, these acts can also constitute “crimes against humanity” [16] —a point evident in the customary post-World War II charters and laws created for prosecution of customary crimes against humanity in the international criminal tribunals at Nuremberg and Tokyo and in numerous fora that operated in Europe under Control Council Law No. 10, which crimes expressly included torture and “other inhumane acts[.]” [17]
The General Assembly also took note of the fact that “prolonged incommunicado detention or detention in secret places can facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment[.]” [18] In 2006, in response to unlawful conduct authorized by President Bush and others in his administration, [19] the Committee Against Torture, which operates under the auspices of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), [20] recognized that “secret detention . . . constitutes, per se, a violation of the Convention[]” and that “enforced disappearance [a previously widely recognized crime against humanity under customary international law] [21] . . . constitutes, per se, a violation of the Convention.” [22] The Committee Against Torture also declared that “detaining persons indefinitely without charge, constitutes per se a violation of the Convention[.]” [23]
Also in 2006, the United Nations Security Council reaffirmed “its condemnation in the strongest terms of all acts of violence or abuses committed against civilians in situations of armed conflict . . . in particular . . . torture and other prohibited treatment . . . .” [24] Additionally, the Security Council demanded that all parties to an armed conflict “comply strictly with the obligations applicable to them under international law, in particular those contained in the Hague Conventions of 1899 and 1907 and in the Geneva Conventions of 1949 . . . .” [25] The Security Council also stressed “the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes, genocide, crimes against humanity and serious violations of international humanitarian law[,]” [26] which can include the use of torture and cruel and inhumane treatment.
Article 146 of the 1949 Geneva Civilian Convention [27] expressly and unavoidably requires that all Parties, including the United States, “search for persons alleged to have committed, or to have ordered to be committed, . . . grave breaches [of the Convention], and shall bring such persons, regardless of their nationality, before its own courts” for “effective penal sanctions” or, “if it prefers, . . . hand such persons over for trial to another High Contracting Party . . . .” [28] The obligation is absolute and applies with respect to alleged perpetrators of any status. As a party to the Geneva Conventions, the United States must either initiate prosecution or extradite an alleged perpetrator to another state or, today, render an accused to the International Criminal Court. “Grave breaches” of the Convention include “torture or inhuman treatment[]” [29] and transfer of a non-prisoner of war from occupied territory. [30] Similarly, Article 7, paragraph 1, of the Convention Against Torture expressly and unavoidably requires that a party to the treaty “under whose jurisdiction a person alleged to have committed . . . [for example, torture or ‘complicity or participation in torture,’ is found, ‘shall,’] if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.” [31] There are no other alternatives.
When 160 states met in Rome in 1998 to create the International Criminal Court (ICC), they emphasized that there is a lack of immunity for international crimes such as genocide, other crimes against humanity, and war crimes, and affirmed the universal duty to end impunity and prosecute alleged perpetrators of such crimen contra omnes in international and domestic courts. For example, the preamble to the Statute of the ICC declares emphatically “that the most serious crimes of concern to the international community as a whole must not go unpunished and . . . their effective prosecution must be ensured by taking measures at the national level . . . ,” expresses the determination of the community “to put an end to impunity for the perpetrators of these crimes . . . ,” and recalls the fact “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes . . . .” [32]
With respect to Article 7 of the International Covenant on Civil and Political Rights, [33] which mirrors customary human rights law and absolutely prohibits any form of torture and cruel, inhumane, and degrading treatment of any human being under any circumstances, [34] the Human Rights Committee that functions under the auspices of the treaty had declared as early as 1982 that “[c]omplaints about ill-treatment must be investigated . . . [and] [t]hose found guilty must be held responsible[.]” [35] Ten years later, the Committee reiterated the requirement that those who violate Article 7, “whether [acts are] committed by public officials or other persons acting on behalf of the State, or by private persons[,] ” [36] and “whether by encouraging, ordering, tolerating or perpetrating prohibited acts, must be held responsible.” [37] The Committee added that the State parties to the treaty have a duty to afford protection whether such acts are “inflicted by people acting in their official capacity, outside their official capacity[,] or in a private capacity.” [38]
A striking feature of every international criminal law treaty is that there is no recognition of any form of immunity for official elites. In fact, Article 27 of the Statute of the ICC expressly affirms that “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility” and that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction . . . .” [39]
III. TYPES OF CRIMINAL RESPONSIBILITY FOR TORTURE
At least four general types of criminal responsibility exist under international law with respect to torture and other outlawed treatment. First, it is obvious that direct perpetrators of violations of the Geneva Conventions, other laws of war, the Convention Against Torture, and crimes against humanity (such as forced disappearance of persons) have direct liability. Leaders who issue authorizations, directives, findings, and orders that instruct others to commit acts that constitute international crimes, such as former President Bush and former Secretary of Defense Rumsfeld, may also be prosecuted as direct perpetrators of crimes. [40]
Second, any person who aids and abets torture is liable as an aider and abettor before the fact, during the fact, or after the fact. [41] Liability exists whether or not the person knows that his or her conduct is criminal or whether or not the conduct of the direct perpetrator of torture is criminal or even constitutes torture. [42] Under customary international law, an aider and abettor need only be aware that his or her conduct (which can include inaction) would or does assist a direct perpetrator or facilitates conduct that is criminal. [43] In any case, ignorance of the law is no excuse. Especially relevant in this respect are the criminal memoranda and behavior of various German lawyers in the German Ministry of Justice, high level executive positions outside the Ministry, and the courts in the 1930s and 1940s that were addressed in informing detail in United States v. Altstoetter (The Justice Case). [44] Clearly, several memo writers and others during the Bush Administration abetted the “common, unifying” plan to use “coercive interrogation[,]” and their memos and conduct substantially facilitated its effectuation. [45] Therefore, prosecution or extradition of several members of the former Bush Administration for criminal complicity would be on firm ground.
Third, individuals can also be prosecuted for participation in a “joint criminal enterprise,” [46] which the International Criminal Tribunal for Former Yugoslavia has recognized can exist in at least two relevant forms: (1) where all the accused “voluntarily participated in one of the aspects of the common plan” and “intended the criminal result [whether or not they knew it was a crime], even if not physically perpetrating the crime[;]” [47] and (2) where “(i) the crime charged was a natural and foreseeable consequence of the execution of that enterprise, and (ii) the accused was aware that such a crime was a possible consequence of the execution of that enterprise, and, with that awareness participated in the enterprise.” [48]
Fourth, civilian or military leaders with de facto or de jure authority, such as former President Bush and former Secretary of Defense Rumsfeld, can also be liable for dereliction of duty with respect to acts of torture engaged in by subordinates when the leader (1) knew or should have known that subordinates were about to commit, were committing, or had committed international crimes; (2) the leader had an opportunity to act; and (3) the leader failed to take reasonable corrective action, such as ordering a halt to criminal activity or initiating a process for prosecution of all subordinates reasonably accused of criminal conduct. [49]
IV. THE RIGHT TO FAIR COMPENSATION
In 2007 and 2008, the United Nations General Assembly stressed that “national legal systems must ensure that victims of torture and other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate social and medical rehabilitation.” [50] In 2005, the U.N. General Assembly had provided further detail concerning the right to an effective judicial remedy for victims of violations of human rights law [51] and the type of “[a]dequate, effective and prompt reparation,” compensation, rehabilitation, and “[s]atisfaction” required under international law. [52]
The mandatory duty to provide fair compensation is set forth in Article 14 of the Convention Against Torture:
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. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation. [53]
Similar rights to an effective remedy, access to courts, and nonimmunity are guaranteed in Articles 2(3)(a) and 14(1) of the International Covenant on Civil and Political Rights, as emphasized in General Comments of the Human Rights Committee that operates under the auspices of the Covenant. [54] They had also been reflected previously in Article 8 of the Universal Declaration of Human Rights, [55] which had mirrored customary patterns of expectation concerning customary roots of the right to an effective remedy in domestic courts for violations of human rights and other rights under international law. [56]
Within the United States, Justice Breyer has recognized more generally that universal jurisdiction with respect to “torture, genocide, crimes against humanity, and war crimes[] . . . necessarily contemplates a significant degree of civil tort recovery,” [57] and a remarkable number of U.S. cases have recognized the right to civil remedies for torture and/or cruel, inhuman, and degrading treatment. [58] Several cases have also recognized the unavoidable fact that violations of international criminal law and human rights law cannot be lawful “official” or “public” acts of the state and are not entitled to immunity. [59] As the International Military Tribunal at Nuremberg recognized, acts in violation of international criminal law (such as violations of the laws of war) are ultra vires or beyond the lawful authority of any state or official:
[T]he doctrine of the sovereignty of the State . . . cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position . . . He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law. [60]
As noted more particularly in Filartiga v. Pena-Irala with respect to torture, “the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.” [61]
V. WHAT IS TORTURE?
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides a lengthy definition of torture. Article 1, paragraph 1 of the treaty declares:
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [62]
Article 1 also acknowledges that “[t]his article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.” [63] Therefore, there is implicit recognition that the treaty’s definition might be too limited. In fact, many recognize that human rights law also prohibiting torture and cruel, inhumane and degrading treatment [64] is not limited to official perpetrators or to those who act at their instigation or with their consent or acquiescence and that private perpetrators can commit illegal acts of torture. [65] Most agree, however, that prohibited acts of “torture” involve (1) an intentional act, and (2) “severe” pain or suffering, whether the prohibition is found, for example, in the CAT, human rights law, or the laws of war. [66] The severe pain or suffering, whether physical or mental, does not have to be long lasting, damage health, or produce any identifiable bodily injury.
As noted above, a widespread recognition exists that under international law there are no exceptional circumstances that can justify the use of torture as a matter of law. Similarly, there are no temporal or geographic gaps with respect to the prohibition of torture and it applies regardless of the status of the direct victim of torture, for example, whether or not the victim is an alleged criminal, enemy, or terrorist. Article 2, paragraph 2 of the CAT is emblematic of a widely shared understanding in this regard: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” [67] Furthermore, Article 2, paragraph 3, affirms that “[a]n order from a superior officer or a public authority may not be invoked as a justification of torture.” [68] It is simply beyond the question that an act of torture cannot constitute a lawful sovereign or public act of any state.
VI. UNLAWFUL TACTICS USED DURING THE BUSH ADMINISTRATION
Among specific interrogation tactics used on detained persons and authorized by President Bush and/or Secretary Rumsfeld, Secretary Rice, Attorney General Ashcroft, and several others within the Bush Administration that manifestly and unavoidably constitute torture are water-boarding or a related inducement of suffocation, [69] use of dogs to create intense fear, [70] threatening to kill the detainee or family members, [71] and the cold cell or a related inducement of hypothermia. [72] With respect to these and other unlawful interrogation tactics authorized by the Bush Administration, the Committee Against Torture declared in 2006 that the United States
should rescind any interrogation technique, including methods involving sexual humiliation, ‘water boarding,’ ‘short shackling’ [e.g., shackling a detainee to a hook in the floor], and using dogs to induce fear, that constitute torture, cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to comply with its obligations under the Convention. [73]
Although the intentional use of sexual violence and rape as tactics are recognizably torture, [74] some forms of sexual humiliation that were authorized and used might not have constituted severe pain or suffering. Nonetheless, they can be manifestly inhumane or degrading and, therefore, equally unlawful. Previously, the Committee condemned the following tactics as either torture or cruel, inhuman or degrading treatment proscribed by the Convention: (1) restraining in very painful conditions, (2) hooding under special conditions, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill. [75]
Many of these illegal tactics, including water-boarding and the “cold cell,” were addressed and expressly and/or tacitly approved during several meetings of the National Security Council’s Principals Committee in the White House during 2002 and 2003 that were attended by Dick Cheney, his lawyer David Addington, Condoleezza Rice, Donald Rumsfeld, George Tenet, John Ashcroft, and others who facilitated their approval and use, including John Yoo. [76] With a typical smug defiance, Cheney admitted that “he was directly involved in approving severe interrogation methods . . . including . . . ‘waterboarding’” and that he was “involved in helping get the process cleared.” [77] With respect to the configurative contributions of his team, President Bush was quoted as stating “yes, I’m aware our national security team met on this issue. And I approved.” [78]
During President Bush’s admitted “program” of “tough” interrogation and secret detention or forced disappearance, [79] and as part of the well-documented “common, unifying” plan to deny Geneva law protections and to use and attempt to justify serial and cascading criminality in the form of “coercive interrogation,” [80] the Administration used shifting definitions of “torture” as if the manifest illegality of its approved interrogation tactics could be defined away. The definitions did not reflect well-known definitions and criteria used in customary and treaty-based international law, [81] or, at times, those used by the U.S. Executive in its Department of State Country Reports on Human Rights Practices for a number of years and by judges in many U.S. federal and state court cases addressing the types of treatment authorized by President Bush and his entourage, [82] including several cases addressing the prohibition of “cruel” treatment and torture under the Eighth Amendment to the U.S. Constitution. [83] These cases and Country Reports on Human Rights could have been easily discovered through use of computer-assisted research, thus demonstrating that several writers of memoranda did not attempt to provide independent, careful, and professional legal advice.
In particular, one memorandum (often-called the “Bybee torture memo”), [84] completed in August 2002 by John Yoo and Jay Bybee, set forth what had become the Administration’s preferred but patently improper standard regarding “torture.” According to the Bybee memo, “torture” should involve far more than the widely known treaty-based and customary international legal test of “severe” physical or mental pain or suffering, and the test set forth in 18 U.S.C. § 2340(1). According to the Bybee memo, the definition of “severe” must be the “equivalent [of] the pain that would be associated with serious physical injury so sever [sic] that death, organ failure, or permanent damage resulting in a loss of a significant body function will likely result[.]” [85] Because the memo was written after several of the White House meetings during which an inner circle (and John Yoo) had discussed and approved or facilitated use of specific interrogation tactics, [86] and was created expressly to deal with “the conduct of interrogations outside of the United States and possible defenses that [allegedly] would negate any claim that certain interrogation methods [already approved] violate” a particular federal statute, [87] it is obvious that the memo was not written for independent professional legal advice, but to provide possible cover for tactics already approved and to facilitate their use in the future. Moreover, because the memo writers had refused to use the widely known test with respect to torture, the Bybee memo was facially devoid of legal propriety and blatantly facilitated the use of criminal interrogation tactics. The memo had also made the patently erroneous claim that, as a matter of law, “necessity and self-defense could justify interrogation methods needed to elicit information.” [88]
Criticism of the manifestly erroneous memo grew so widespread in the U.S. and abroad that the memo was eventually withdrawn and replaced by a 2004 memo that is still classified; however, criticism continued to demonstrate that the Bush Administration’s definition of torture remained unacceptable and that unlawful tactics being used for interrogation had not been withdrawn. There was actually a second August 2002 Bybee memo prepared by John Yoo that addressed specific interrogation tactics. [89] It was not withdrawn until June 2004 [90] when the new head of OLC, Jack Goldsmith, finally decided to withdraw the opinion nearly eight months after he had learned of the secret CIA tactics for interrogation authorized in the second Bybee memo. [91] For nearly eight months, Goldsmith apparently decided that he would not oppose the use of any particular tactic addressed in the memo or otherwise known to be used by the CIA. [92]
A March 14, 2003 memo written by John Yoo for William Haynes [93] (after participation in several of the White House meetings of the Principals Committee) had, in Goldsmith’s words, “contained abstract and overbroad legal advice, but the actual techniques approved by the [defense] department were specific[.]” [94] In December 2003, Goldsmith decided to withdraw the March 2003 Yoo memo, but he told Ashcroft and Haynes that he allowed the Department of Defense “to continue to employ the twenty-four techniques.” [95]
In March 2004, a draft memo penned and “circulated” by Jack Goldsmith fit perfectly within the common, unifying plan to deny Geneva protections and engage in secret detention and coercive interrogation by claiming that persons in Iraq can be transferred “to another country to facilitate interrogation[,]” [96] despite the clear, absolute, and criminal prohibition of the transfer of any non-prisoner of war out of occupied territory under the Geneva Civilian Convention and customary international law. [97] To “facilitate interrogation,” the Goldsmith memo also made the patently erroneous claim that a detainee who was not lawfully in Iraq could be denied protections under Geneva law. [98]
In 2005, a memo penned by Steven G. Bradbury of the Office of Legal Counsel at the Department of Justice and approved by then Attorney General Alberto Gonzales provided “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency[,]” including water-boarding and use of “frigid temperatures.” [99] In July, 2006, soon after the Supreme Court ruled that detainees are entitled, at a minimum, to the rights reflected in Common Article 3 of the Geneva Conventions, [100] President Bush signed a new executive order reauthorizing unlawful interrogation tactics such as water-boarding and the “cold-cell” while furthering his program of coercive interrogation and secret detention. [101] In September 2006, President Bush admitted that a CIA program had been implemented using secret detention and “tough” forms of treatment and that the program would continue. [102]
Later in 2006, Congress enacted the Military Commission Act (MCA), [103] thereby amending the War Crimes Act. [104] The MCA was enacted to further define “torture” prohibited under Common Article 3 of the 1949 Geneva Conventions—a violation of which is a war crime under international law, the War Crimes Act, [105] and other federal legislation that was not amended and incorporates all of the laws of war as offenses against the laws of the United States. [106] However, the MCA’s definition does not comply with Article 1 of the CAT, for the following reasons: (1) the MCA definition applies only to torture of a person in the perpetrator’s custody or control, whereas the CAT’s definition applies to any “complicity or participation in torture[]” of any person; (2) the MCA definition has a limitation with respect to the purposes for which torture is used, whereas the CAT assures that torture for any purpose is illegal and lists purposes in a non-exclusive manner (i.e., listing purposes with the phrase “such as”); and (3) the definition of “severe mental pain or suffering” in the MCA is limited to the meaning set forth in other U.S. legislation that the Committee Against Torture has already found to be in breach of the Convention’s obligation to enact appropriate laws to cover all forms of torture as well as all forms of cruel, inhuman, and degrading treatment. [107]
It is time for new legislation regarding torture and cruel, inhuman and degrading treatment to reach all forms of such unlawful treatment in order to comply with the CAT, human rights law (customary and treaty-based), the laws of war (customary and treaty-based), and, more generally, to comply with what the United Nations Security Council and General Assembly have recognized as the duty of all states to end any form of impunity for and to prosecute international crime. [108] Full coverage would also allow the United States to exercise a greater flexibility to request extradition of U.S. and foreign nationals for prosecution in the United States. Otherwise, U.S. extradition requests for the return of U.S. nationals and for the custody of foreign nationals can be denied because of a lack of dual criminality where an alleged offense is not a crime prosecutable under the laws of the foreign country as the requested state and the U.S. as the requesting state. [109] In such a circumstance, U.S. nationals will be prosecuted in foreign courts using foreign procedures [110] or rendered to the International Criminal Court (“ICC”). [111] Moreover, the principle of complementarity set forth in Article 17 of the Statute of the ICC, which requires suspension of ICC prosecution when the United States is able to and “genuinely” proceeds with prosecution in good faith, [112] will not be applicable where U.S. legislation does not cover crimes within the jurisdiction of the ICC or for any other reason the U.S. cannot or will not initiate prosecution of those who are reasonably accused. One set of federal statutes allows prosecution of any war crime in the federal district courts, [113] but presently there is no federal legislation allowing prosecution of crimes against humanity as such. Nonetheless, some crimes against humanity committed during an armed conflict, such as torture and secret detention or forced disappearance of individuals, are also war crimes and can be prosecuted as war crimes. [114]
It is also time for the United States to withdraw its attempted reservation to the CAT which had declared erroneously that the U.S.
considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. [115]
The Committee Against Torture under the auspices of the CAT has recognized that, if operative, the putative reservation (which technically is phrased merely as a unilateral understanding that happens to be in plain error and could be withdrawn) would result in a failure to cover all violations of the Convention and that, therefore, the attempted reservation is “in violation of the Convention[.]” [116] As in the case of any attempted reservation that is inconsistent with the object and purpose of a treaty, the attempted reservation is void ab initio as a matter of law and has no legal effect. [117] Thus, it cannot protect the United States or any U.S. national but, as is the case with other void attempted reservations to human rights treaties, it communicates a lack of meaningful commitment to human rights. President Obama can act now to notify the Secretary-General of the United Nations (as the depository for the treaty) that the United States formally withdraws its attempted reservation because it is void as a matter of law. Such an act by the President would help to end an embarrassment for the United States and restore U.S. integrity and respect as a country committed to human dignity and human rights. Concomitantly, President Obama can notify the Secretary-General of the U.S. withdrawal of the same type of putative, but void, reservation to the International Covenant on Civil and Political Rights. [118]
VII. CONCLUSION
It is time for real change in America. It is time to restore the rule of law; to bring an end to seven years of impunity that must be effectuated through Executive prosecution or extradition of all who are reasonably accused; and to restore American honor, integrity, and respect within the international community. [119] At this defining moment in our history, none of these critically needed outcomes can be accomplished by new commission or committee reports. [120] Ultimately, they can only be accomplished by adherence to the express and unavoidable constitutional duty of the President of the United States faithfully to execute the laws, [121] including customary and treaty-based international law that requires prosecution or extradition of those who authorized, ordered, abetted, or engaged in torture and other forms of illegal treatment of human beings. Never in the long history of the United States has there been such widespread serial criminality authorized and abetted at the highest levels of our government. Never in the history of our country has any other President been known to have authorized war crimes and crimes against humanity.