France slammed by UN Torture Committee

In November 2009, France enacted a law designed -- as claimed by President Nicolas Sarkozy's administration -- to recognize prisoners' fundamental rights (inter alia, civil, social, family, health, labor and training rights) in order to promote human dignity and social rehabilitation. In a strong indictment of this administration's policies and practices in the areas of criminal justice and immigration/asylum, the UN Committee Against Torture's latest report indicates that rather than being "exemplary" in the area of human rights, this law, and more broadly the penal policies implemented since the Committee's last review in 2005, are a miserable failure.
The first subject of concern for the Committee is the fact that, though France criminalizes torture and acts of barbarity and violence, it has not brought its legislation into "strict conformity" with the definition of torture provided by the Torture Convention (art. 1). In particular, the Committee notes that such a definition would provide the clarity and foreseeability required of criminal law and satisfy the Convention's obligation to distinguish acts of torture committed, tolerated or instigated by public officials or others acting under color of law from acts of violence committed by non-state actors. The Committee also repeats its recommendation that France make torture an imprescriptible crime (§13).
Secondly, the Committee reproaches France its "priority procedure" for asylum requests, which does not provide for suspensive appeals. Those whose requests are denied may therefore be sent back to countries where they risk torture before their appeals are heard. In 2009, 22% of asylum requests were subject to this procedure (§14).
Thirday, the Committee is concerned with France's 2003 law introducing the concepts of: (1) "internal asylum," "asylum" in an area of the home country where the individual is deemed safe from persecution, applicable, for example, to women seeking protection from gender-based persecution suffered within the tribal setting; and
(2) "safe countries," the concept that countries may be deemed safe for refugees to return if, for example, the armed conflict or political regime from which they fled has ended. The criteria used generally do not protect women from gender-based persecution. The Committee "deplores" France's returning of individuals to countries where they risk torture or other cruel, inhuman or degrading treatment (§§16-18).
With respect to police custody, interrogation and imprisonment (image credit), the Observatoire International des Prisons notes the severity of the Committee's remarks, and summarizes the recommendations -- which are final and cannot be appealed -- as follows:

• The Committee requests that France "consider abrogating" the rétention de sûreté, which allows for indefinite imprisonment of those deemed not safe to release even after they have served their time. Noting in §29 that this extra penalty flouts the principle of legality and is "of a nature to raise questions" as to the prohibition of cruel, inhuman or degrading treatment, the Committee also points to its incidence on prison overpopulation. Finding a "direct corollary" between the current overpopulation and the "numerous criminal laws recently enacted that aim to stiffen penalties and reduce recidivism, the Committee enjoins France to apply penalties other imprisonment more often.
• The Committee aligns itself with several national and European human rights authorities by criticizing France's system of differential detention, which "necessarily" renders the conditions in which sentences are carried out arbitrary: "disciplinary punishment, or denial of access to certain rights while in prison could, by their repetition, absence of justification, and/or the arbitrary way in which they are dispensed, constitute cruel, inhuman or degrading punishment or treatment."
• The Committee once again criticizes the system of full body searches of prisoners, asking that this practice be completely eliminated.
• The Committee warns that the use of Tasers (electrical discharge pistols) may constitute torture. (Prior IntLawGrrls post)
• The Committee is highly preoccupied by the number of suicides in French prisons (more than 15% of the detainees who killed themselves in 2009 were being held in disciplinary quarters as punishment) and requests that isolation be used only exceptionally and for a limited time, in accordance with international norms.
• The Committee is also preoccupied by continued allegations of mistreatment of detainees by officers/guards and requests that each such allegation benefit from a transparent and independent investigation. In this regard, the Committee expresses its concern that the Sarkozy administration's new "Défenseur des droits" (rights defender) replace other authorities designed to protect fundamental rights. It therefore requests the government to ensure the effective and uninterrupted operation of the Contrôleur général, as well as other independent authorities (national mediator, office of children's rights, and the national commission on security ethics).

Lastly, the Committee notes that it was inadequately informed of France's efforts to combat human trafficking and sexual exploitation, and recommends that it adopt a program designed to punish traffickers and to protect and rehabilitate trafficked persons.
The same criticisms and recommendations have been made by the European Court of Human Rights, which found France guilty of violating the prohibition on torture 5 times between 1992 and 2007 in the prison context, and the French National Consultative Committee on Human Rights, which has issued recommendations on, inter alia, implementing the torture convention and on combating human trafficking and sexual exploitation (English version translated by yours truly).
It is time France listened.

The Next Best Thing

On July 23, 2002, in the courtroom of Judge Daniel T.K. Hurley, a South Florida jury returned a $ 54.6 million verdict, encompassing punitive and compensatory damages, in favor of three Salvadoran survivors of torture. The case, Romagoza v. Garcia, was brought by the Center for Justice & Accountability on behalf of three Salvadoran refugees--Dr. Juan Romagoza, Professor Carlos Mauricio, and Neris Gonzalez (Mauricio & Gonzalez are pictured at left)--against two former ministers of defense of El Salvador: Jose Guillermo Garcia (below right) and Carlos Eugenio Vides Casanova.
The verdict heralded a major victory in the worldwide fight against impunity for human rights violations. Most significantly, the case was one of the first Alien Tort Statute cases in which defendant commanders, fully contesting the allegations and testifying in their own defense, were held liable for human rights violations exclusively under the doctrine of command responsibility.

Another case in which the plaintiffs relied solely on the doctrine of command responsibility, Ford v. Garcia, was brought in the same courtroom against the same two generals by families of the four United States churchwomen who were raped and murdered by members of the Salvadoran National Guard in 1980. In November 2000, a jury rendered a verdict in the Ford case that the generals could not be held liable for the crimes, apparently because the jury was not satisfied that the two generals had "effective control" over their subordinates. (See a prior post on the Ford case here). Both cases are the subject of a PBS film, Justice & the Generals.

The Romagoza plaintiffs managed to recover a couple hundred thousand dollars from an investment account held in Vides Casanova's name. The rest of their judgment, however, remains unexecuted as no other assets have been found. Thanks to Florida homestead laws and other legal barriers, General Garcia has never paid a penny of the judgment against him.
Garcia may not be enjoying his Florida retirement for long.

The U.S. Attorney for the Southern District of Florida, R. Alexander Acosta (right), and Anthony V. Mangione, Special Agent in Charge, U.S. Immigration and Customs Enforcement, Office of Investigations, Miami Field Office (ICE), recently unsealed a two-count indictment against Garcia. Unfortunately, Garcia is not being charged with torture under 18 U.S.C. § 2340, a statutory provision enacted in the wake of the United States' ratification of the Torture Convention, but well after the civil war in El Salvador. Rather, Al Capone-style, the Indictment charges Garcia with
► using a passport procured by false statement, in violation of 18 U.S.C. § 1546(a), and
► making a materially false statement to a federal officer, in violation of 18 U.S.C. § 1001(a)(2).

According to the press release accompanying the indictment:

The defendant used an El Salvadoran passport at Miami International Airport on July 7, 2006 in an attempt to enter the United States. The defendant had obtained the passport after falsely telling the Government of El Salvador that he had lost his previously issued passport. In fact, however, his prior passport had not been lost, but had been seized by United States immigration authorities.

In addition, the Indictment alleges that on the same day, July 7, 2006, the defendant falsely stated to United States immigration authorities at Miami International Airport that he had obtained the second El Salvadoran passport after his attorney had told him that his first passport, which had been seized by U.S. immigration authorities, had been lost by those authorities. According to the defendant, his attorney had told him that because the immigration authorities had lost the passport they had seized from him, it was permissible for him to obtain a new passport to travel to El Salvador. The Indictment alleges that the defendant knew this statement was false.

The case will be heard by U.S. District Court Judge Patricia Seitz. The charges carry maximum penalties of ten years’ imprisonment (using a passport procured by false statement) and five years’ imprisonment (making a materially false statement to a federal officer).

Obama must-do: Close GTMO, end torture

[Q:] There are a number of different things that you could do early pertaining to executive orders. One of them is to shutdown Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?

Mr. Obama: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm gonna make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world.

In giving this answer during last night's 60 Minutes interview (video here), President-Elect Barack Obama (above) reaffirmed his campaign promise to turn the page and close the book on abuses committed by the United States in the wake of the terrorist attacks of September 11, 2001.
The answer's noteworthy not only for its content, but also for its crispness.
Sources named and unnamed have uttered hand-wringing "But hows?" when asked about closing the U.S. detention camp at Guantánamo (below) or about ending coercive interrogation at any U.S. site anywhere. Last week an Obama senior adviser insisted no decisions have been made. Yet Obama left no room for doubt that both goals can be achieved. (On this I agree; more on that soon.)
His answer signaled too that change may come sooner than later:
Note that Obama did not push back from the interviewer's suggestion that both were "things that you could do early" by means of executive order.

Terror/Torture

In the face of terrorism, human rights law’s requirement that states “respect and ensure” rights necessitates that states take active steps to safeguard their populations from violent attack, but in so doing do not violate rights. Security experts usually emphasize the aspect of ensuring rights while human rights advocates largely focus on respecting rights. The trick, which neither side in the debate has adequately referenced, is that states have to do both at the same time. Hence, both our contemporary human rights and security discourses on terrorism need to be broadened and renewed. This renewal should be informed by the understanding that international human rights law protects the individual both from terrorism and the excesses of counterterrorism, like torture. To develop this thesis, my article Terror/Torture, 26 Berkeley Journal of International Law 1 (2008), explored the philosophical overlap between both terrorism and torture and their normative prohibitions. As I explain in this, my 1st IntLawGrrls post, the article aims to spark the development of a new human rights approach to terrorism by suggesting new discourses around the paradigm of terror/torture.
The seventh anniversary of the atrocities of September 11, 2001 (above right), is perhaps an appropriate time to stress that, in addition to continuing their work to criticize state practices in the context of the “war on terror,” international human rights lawyers need to develop an analysis of and specific response to the phenomenon of Muslim fundamentalism and affiliated transnational jihadist movements. The response to Muslim fundamentalism needs to be developed in the context of assessing other fundamentalisms – Christian, Jewish, Hindu – as well. (For an example, see the website of Women Living Under Muslim Laws/Femmes sous les lois musulmanes.)
Moreover, any such analysis and response need to be free from discrimination against Muslims – but not by pretending that the particular and grave challenge to international law from these fundamentalist and jihadist movements does not exist. Their primary victims, as the U.S. National Strategy for Combating Terrorism acknowledges, are other Muslims and people of Muslim heritage or those who live in the Muslim world. However, as that Strategy fails to acknowledge – but as Robert Dreyfuss explains in his 2005 book, Devil's Game – Western policies in the region have historically contributed to the rise of these movements. The social project of these movements also poses a particular threat to women’s human rights, as is evident from even a cursory glance at the website entitled Secularism is a Women's Issue.
Today’s somber anniversary is a good time to remember the importance of human rights support for those in the Muslim world and Diaspora Muslim populations who have exposed and opposed Muslim fundamentalist terrorism and whose human rights have been imperiled as a result. One example is Cherifa Kheddar (above left), the president of Djazairouna, an association of Algerian victims of Islamist terrorism. Kheddar’s brother and sister were both murdered by Algeria’s fundamentalist armed groups during the terrible 1990s. Since then, she has worked tirelessly in one of the most dangerous parts of the country to support victims of terrorism – and to demand justice for them. In addition to enduring the ongoing threat posed by the resurgent terrorism of Al Qaeda in the Islamic Maghreb, which seeks to rekindle the horrors of the 1990s in Algeria, Kheddar has also been penalized by the Algerian government for her opposition to an amnesty that was given to both non-state and government perpetrators. As is detailed here and here, she was demoted in her government job, and may lose her government housing (a very difficult sanction in Algeria’s impossible housing situation).
Another imperiled and important opponent of jihadist terrorism is the Algerian journalist Mohamed Sifaoui (left), who is known for his infiltration of Al Qaeda in Europe, which produced a celebrated exposé. Sifaoui is also an outspoken advocate of women’s rights. He was reportedly attacked by two men with links to Algerian armed groups on the streets of Paris in June. A civil society campaign currently seeks to have his French police protection reinstated. (See here and here.)
The real struggle against terrorism – as opposed to the “war on terror” which has so challenged international law – is a human rights struggle carried out in part by people like these with their voices and pens and organizing efforts. The only way such efforts can succeed is with sustained and thoughtful support from human rights advocates. Counterterrorist policies that violate international law clearly undermine the endeavors of people like Sifaoui and Kheddar. But a human rights response that focuses solely on the impact of counterterrorism, and not of terrorism itself, hinders their work as well. Instead, international lawyers need to develop what Gita Sahgal has called a “human rights account” of terrorism. Perhaps that could be our best contribution to commemorating the terrible events of September 11, 2001.

Rushing to Acquit

(My thanks to IntLawGrrls for inviting me to publish this guest post.)

In the past months, a steadily increasing flow of information strongly suggests that Bush-Cheney Administration officials may have committed or approved of the commission of War Crimes and other violations of international and domestic law in pursuit of its “War on Terror.” In reaction to the building mass of evidence – testimonial, documentary, videotapes, and photographs – of torture and cruel treatment of detainees from Guantánamo to Bagram to Iraq, a number of commentators and pundits have tried to “spin” the evidence away from accountability.
According to these media partisans, no one should be prosecuted, the President should issue pardons to all, and the best option is to have some kind of truth commission later on when it’s all over. Despite a scathing report from the Justice Department’s Office of the Inspector General in May 2008, reporting the F.B.I.’s observation of a catalogue of abuses at Guantánamo, Attorney General Michael Mukasey has refused to take any action against Justice Department or other officials who may have been involved in sanctioning the use of “enhanced interrogation” methods, including torture.
These “enhanced interrogation” methods, derived from Chinese and Soviet techniques developed to torture U.S. soldiers, have been called “necessary” by those who promulgated their use despite pervasive evidence that such techniques do nothing more than produce false confessions.
Ignoring the legal requirement for investigation and accountability for the use of cruel and inhuman treatment, including the use of torture, is a wholesale abandonment of this country’s commitment to the Rule of Law. I firmly object to a premature pre-emption of possible prosecutions against people who have committed war crimes or other violations of U.S. and international law. It is imperative that the United States, long a supporter of human rights, the Geneva Conventions, and the Convention Against Torture, honor its commitment to these laws. To do otherwise is to abandon the long-standing principles of this nation and to endanger the standing of the United States as an advocate for human rights. To do nothing diminishes the value of the Rule of Law.
I do not deny the horrific violence committed against the United States on September 11, 2001, or the trauma it has caused. I do deny that the attacks of 9/11 absolve the United States of its historic commitment to the Rule of Law. U.S. commitment to laws regulating war arises from deep within American history, something that the architects of the “war on terror” seem to have ignored. The United States first stood for humane treatment of captives during the Revolutionary War, when George Washington forbade his troops from mistreating the British, even if the British tortured Americans. During the Civil War, Lincoln commissioned the Lieber Code establishing a law of war. After World War II, the U.S. was a primary advocate for the Geneva Conventions. And it has honored Geneva and held the Conventions applicable through every war until the “war on terror.” Moreover, the United States is a state party to the Convention Against Torture, and the Detainee Treatment Act of 2005, which specifically forbids the military, although not the CIA, from engaging in torture or cruel, inhumane, and degrading treatment of “detainees.”
The United States not only helped promulgate the Geneva Conventions, it is a state party and has enacted legislation binding the country to the Conventions. Geneva prohibits the mistreatment of any captive in a war, regardless of status. The Bush Administration lawyers decided, on the basis of one highly criticized Supreme Court case, Ex parte Quirin (1942), to argue that anyone designated an “enemy combatant” had no rights under Geneva or any other law, including the criminal law of the United States. The Geneva Conventions, however, contain no such description or definition. And, since Quirin, the United States has honored Geneva and the Supreme Court has repeatedly held that simply calling someone an “enemy combatant” does not remove the person from the protection of the laws, including Geneva and the Constitution of the United States.
Impunity from prosecutions for war and other crimes is for dictatorships, not democracies. Thus, I steadfastly believe that “impunity” from prosecution for crimes committed by government agents or their superiors – either through pardons or refusals to investigate and prosecute – damages the commitment to the Rule of Law for which the United States has long stood, and for which International Law has stood, for many years. The Nuremberg Principles (1950) made clear that obeying orders from a “higher authority” did not excuse war crimes and crimes against humanity. As a chief prosecutor at the International Military Tribunal at Nuremberg, and as a country that has long stood for the principle of being a government of laws, not men, the United States cannot and should not abandon the Rule of Law for convenience, its own political comfort, or deniability of crimes committed in the name, if without the approval, of the American people. Ruling out prosecution in advance of the evidence is neither a legal nor a moral option.

(Library of Congress credit for poster above right, captioned "Geneva Conventions: Military personnel and combatants who are captured or who surrender shall not be killed and shall be treated humanely"; credit for © Raymond D'Addario photo of U.S. Supreme Court Justice Robert H. Jackson, serving as Chief U.S. Prosecutor at 1st Nuremberg trial. Cross-posted at CommonDreams.org)

Territory v. Control Redux: On the Dismissal of Maher Arar's Lawsuit v. U.S. Officials

As many readers may know, Canadian citizen of Syrian origin Maher Arar (below right, photo credit) was "abducted" in 2002 while transiting at Kennedy Airport in New York and "rendered" to Syria, where he was tortured. A Canadian commission inquiry revealed that Canadian officials had misinformed US officials; the Canadians therefore apologized and paid Arar roughly $10.3 million. In addition, as Jaya Ramji-Nogales posted, his case figured prominently in the Canadian Federal Court's assessment that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the UN Convention against Torture (CAT), which also prohibits refoulement. Nonetheless, US Legal Advisor John B. Bellinger III announced last month (with respect to the US practice of obtaining diplomatic assurances from countries known to torture prisoners) that in keeping with its obligations under article 3 of the CAT, the US does not transfer prisoners to countries that torture. He emphasized, however, that the non-refoulement provision applies only to persons actually in the United States. Apparently agreeing with him, the Second Circuit Court of Appeals ruled Monday that Arar cannot sue United States officials for damages because he was never technically within US territory. Isn't the airport transit zone, just like the Guantánamo naval base, under the complete control of the United States and therefore US "territory" for purposes of the Convention as well as for habeas corpus?

Read On! The Definitive Filártiga

(Read On! ... occasional posts on writing we're reading)

Every once in awhile, a case comes along that changes everything. Filártiga v. Peña-Irala (2d. Cir. 1980) was one of those cases. The Filártiga plaintiffs made an audacious assertion: that Paraguayan victims of human rights violations could bring suit in a U.S. federal court against a Paraguayan perpetrator for acts of torture and extrajudicial killing committed in violation of international law in Paraguay. (Plaintiffs were the sister and father of Joelito Filártiga, below left). The case established many firsts: that the Alien Tort Statute supports assertions of extraterritorial jurisdiction, that long articulated but rarely enforced human rights norms are justiciable, that the individual is front and center in international law as victim and perpetrator, and that ensuring a robust system of accountability is consistent with the interests of the United States. Filártiga empowered hundreds of additional victims to mobilize the U.S. legal system against human rights abusers who would otherwise find safe haven in the United States. Before Guantánamo and its repercussions, the United States boasted the most vibrant system of civil domestic human rights enforcement in the world. Professor William Aceves’s engaging new volume, The Anatomy of Torture: A Documentary History of Filártiga v. Peña-Irala (2007), tells the story of how we got here through a rich account of the Filártiga case and its progeny. (A fuller review is forthcoming in Human Rights Quarterly).

Aceves’s project joins the “law stories” movement in legal pedagogy exemplified by Foundation Press’s excellent series of course supplements. (Indeed, the Filártiga case is also featured in Foundation’s equally great Law Stories text on international law, in a chapter by Yale Law Dean Harold Hongju Koh: "Filártiga v. Peña-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture" in International Law Stories (John E. Noyes et al. eds. 2007)). Aceves offers a definitive account of Filártiga’s procedural history—with an emphasis on the pleadings, defensive strategies, choice of law questions, the applicability of the “political” defenses (act of state, political question), legal and administrative remedies, appellate practice, and methods of enforcement. This exhaustive treatment of a single case provides a valuable window into the transnational legal process.

Yet, Aceves’s volume is more than a stereoscopic treatment of a single case and its impact. The text also includes a fascinating and exhaustive documentary history compiled from a variety of governmental and non-governmental sources within the United States and Paraguay. The mix of legal and political artifacts—complete with pleadings and opinions, embassy cable traffic, and transcripts of key hearings—enables a more complete understanding of the litigation process from pre-filing investigation to final judgment and all the hurdles in between. Indeed, Aceves was able to uncover intriguing information about the case that is not at all part of the official record from a variety of sources, including through recourse to the Freedom of Information Act. (The drawings below are by Dr. Joel Filártiga, one of the plaintiffs and also an accomplished artist).

Aceves’s book offers a compelling read for anyone interested in international human rights and their enforcement. With its more technical emphasis on the evolution of legal doctrines essential to ATS litigation, the book is geared more toward lawyers, academics, and students than toward laypersons. (A more dramatized account of the case is provided by Richard Alan White, Breaking Silence: The Case that Changed the Face of Human Rights (2004). White was a friend of the Filártigas who spent time with the family in the immediate aftermath of Joelito’s death. HBO produced a docudrama on the case entitled One Man’s War (1991), in which Anthony Hopkins plays Dr. Filártiga (left)). For the legal community, the book will undoubtedly serve many purposes. For one, its discussion of key precedents provides essential reading and an invaluable reference tool for practitioners of ATS litigation. From the perspective of legal pedagogy, the book has the potential to be a wonderful teaching tool for courses on the international legal process, transnational civil procedure, and human rights theory and practice. For students enrolled in law school human rights clinics, the book will provide a great introduction to the ebb and flow of human rights litigation.

The author (right) is uniquely well suited to undertake this study of transnational human rights litigation. Aceves teaches international human rights, foreign affairs law, and civil procedure at California Western School of Law, where he serves as the Director of the School’s International Legal Studies Program. In addition to his scholarly pursuits in these areas, Aceves has participated actively in a number of cases in the Filártiga tradition as litigation advisor and “friend of the court.” Aceves is also on the board of the Center for Justice & Accountability, one of the primary human rights organizations devoted to ATS litigation, and works regularly with Amnesty International. Given his insider’s perspective, it is no surprise that his book is a definitive account of this seminal case and its impact.

A fascinating chapter of this procedural story concerns the role of the Carter Administration, which eventually filed an amicus curiae brief in the case at the invitation of the Second Circuit. (Plaintiffs appealed the district court’s dismissal of the case on the ground that international law did not regulate the interactions between individuals within a single state, even when state action was involved). Aceves’s book provides a rare “behind the scenes” look at some of the inter-departmental and inter-branch negotiations between the Department of Justice, the Solicitor General, the Department of State, members of Congress, and even plaintiffs' counsel that preceded the filing of the brief. The final brief soundly rejected the district court’s approach to international law by confirming that the universal and fundamental prohibition against torture protected individuals from their own governments. A key feature of the brief is its dynamic view of the evolution of international law and the cognizability of customary international law. The brief confirmed that where a norm is well-established, such as the prohibition against torture, there is little concern that its private enforcement would undermine U.S. foreign policy interests. Rather, the brief opined, the failure to recognize a cause of action for acts of torture might undermine the credibility of this nation’s commitment to international human rights and its ability to exert influence on states with poor human rights records.

These are stirring ideas in the current climate, which has witnessed the re-emergence of a debate about the legality, propriety, and utility of torture and cruel treatment as means of interrogation; has occasioned government lawyers drafting legal memoranda that provide a blueprint for insulating U.S. officials from legal responsibility for unlawful interrogation techniques; and has resulted in the bipartisan passage of legislation stripping the courts of jurisdiction over claims by individuals who allege that they have been mistreated by agents of the U.S. government. The Carter Administration’s brief, with its unalloyed support for accountability and the civil enforcement of international human rights norms, is a striking contrast to official positions taken by the Bush Administration in the war on terror and in current ATS litigation.

The Second Circuit’s landmark opinion bespeaks a more hopeful and self-assured time. It is indeed startling to revisit this case in this historical moment. The United States, once a beacon of human rights values, is now subject to worldwide criticism for having turned its back on the human rights edifice. Likewise, its credibility as a champion of human rights worldwide and its ability to exercise global leadership on this score have been indelibly stained. In these unfortunate times of moral relativism, it is instructive to recall the uncompromising words issued by the Second Circuit in reinstating the Filártiga case:

In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free from torture. … In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations … is the right to be free from physical torture. Indeed, … the torturer has become like the pirate and the slave trader before him hostis humani generis, an enemy of all mankind.

These words—while somewhat muffled by the discourse of the day—still ring true and must be reaffirmed.

Rendition on Trial

The trial of 26 Americans and several former top Italian intelligence officials for the 2003 extraordinary rendition (kidnapping and torture) of Muslim cleric Hassan Mustafa Osama Nasr (aka Abu Omar) has finally opened in Milan. As you may recall, in 2003, American intelligence officers grabbed Nasr off the street in Milan and rushed him off to Egypt where, as his wife testified on Wednesday, he was tortured in an attempt to gain information about his possible terrorist connections. The Bush administration has of course refused to extradite the Americans responsible for the rendition (25 CIA agents and 1 Air Force colonel), and the Italian government has done its share of stalling to avoid trial, claiming that prosecutors exercised too much zeal in intercepting the CIA agents' phone calls, for example. Why would they do so? After all, this particular rendition created fury among many in Italian law enforcement by snatching Nasr out from under surveillance that had them on the brink of obtaining much more valuable (and reliable) information about Muslim groups in Italy than Nasr's alleged torture in Egypt could provide. Politics as usual: Silvio Berlusconi (left) was Prime Minister when the rendition took place and his recent reelection means keeping a lid on any evidence of collusion with the Americans that might harm his new government. One of the Italian defendants, Nicolò Pollari (former director of the military intelligence agency) claims that both Berlusconi and former Prime Minister Romano Prodi have information that would prove he at the very least knew nothing of the kidnapping, and may have actually opposed it. Meanwhile, defense lawyers tried to challenge Nasr's wife's reliability as a witness, claiming that her veil indicates anti-American bias!

Life sentences under European judicial review

Under consideration by the European Court of Human Rights: whether sentences to life in prison violate the ban on "torture or ... inhuman or degrading treatment or punishment,"
contained in Article 3 of the European Convention on Human Rights.
The Strasbourg-based Court heard argument Wednesday in the case of 71-year-old Lucien Léger. Having received une réclusion perpétuelle, a life sentence, in 1966, he was France's longest-serving inmate, with 41 years in prison; indeed, on account of repeated refusals of his requests for parole, his was, in effect, a sentence of "LWOP," or life without parole. LeMonde reported that Léger's 2002 bid for ECHR relief had been rejected in 2006, on the ground that "imprisonment for life does not constitute inhuman treatment if the person is not deprived of all hope of obtaining adjustment of the penalty" -- an adjustment that Léger had secured with his conditional release in 2005, while his ECHR case was pending. Two ECHR judges dissented from that decision, however, among them the French judge, Jean-Paul Costa (left), now the Court's President. Eventually the Court agreed to rehear the case by means of its Grand Chamber.
And so on Wednesday, the Court heard Léger's case (webcast here). "Dressed entirely in black, clasping his hands together and occasionally holding a pencil," wrote LeMonde's Alain Salles, Léger "listened patiently to the arguments, in which he did not have the right to take part." He displayed "signs of denial," and his attorney, Jean-Jacques de Felice, objected outright, "when Anne-Françoise Tissier, the government's lawyer, said that his sentence was justified because he'd shown no remorse" for the crime of conviction, murder of an 11-year-old child. But de Felice reserved his greatest condemnation for the sentence itself:

'Society has the right to judge and to imprison him, but not the right to kill in him, bit by bit, all hope of freedom, all prospect of return to society.'

Given challenges in California and elsewhere in the United States to LWOP sentences -- particularly those imposed on children -- it's worth keeping an eye open for the ultimate decision of this regional human rights court.



(Cross-posted at Slate's Convictions blog)

Go On! "Preventing Torture"

(Go On! is an occasional item on symposia of interest.) Insufficiently noted when issued was a November 2007 statement on combating torture, set forth by the U.N. Committee Against Torture (CAT) in its General Comment No. 2.
The General Comment elaborates on Article 2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states in full:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. 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.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

A careful look at the General Comment will be taken by a host of panelists at "Preventing Torture," a symposium to be held this Friday, March 28, 2008, at the Association of the Bar of the City of New York. As cosponsors -- the New York City Law Review, a student journal at the City University of New York (CUNY) School of Law, and the International Human Rights Committee of the city's bar association -- put it in their conference brochure:

The General Comment addresses key fault lines in the absolute prohibition against torture and ill-treatment that have been opened in the name of counter-terrorism. It also underscores the applicability of the Convention to sexualized and gender violence, where perpetrated by state officials as well as where state officials acquiesce to private violence, including domestic violence.
Speakers will address the authority, adequacy, and policy implications of the General Comment. Since the U.S. is a State party to the CAT, speakers will also address the relevance of the Comment to current laws and practices of the Bush administration and to positive reforms and initiatives needed to bring U.S. law and practice into compliance with its international commitments to eliminate torture and ill-treatment in every sphere.

Among those speakers will be several women who're experts on these questions, a number of whom we've featured in prior posts. Among the CAT members who'll speak are Felice Gaer (top left), former Vice-Chair and current Rapporteur of CAT, as well as Co-Rapporteur for General Comment No. 2, and Nora Sveaass (bottom left), President of the Norwegian Psychological Association's Human Rights Committee. Other panelists will include: Patricia Viseur Sellers, former Legal Advisor for Gender-Related Crimes, International Criminal Tribunal for the former Yugoslavia; New York University Professor Margaret L. Satterthwaite, Research Director of the Center for Human Rights and Global Justice; CUNY Professor Rhonda Copelon, Director of the International Women's Human Rights Clinic; and Columbia Professor Betty Reardon, Founding Director Emeritus of the Peace Education Program.
Details here.

Justice Antonin Scalia on "so-called torture" and rights, if any, of Guantánamo detainees

Just broadcast on BBC Radio 4's half-hour weekly program, "Law in Action," an interview conducted with U.S. Supreme Court Justice Antonin Scalia during a recent visit to London. (photo credit)
As you can hear here, the interview ranges widely, from originalism to abortion, from the plaintiffs' bar to BMW, from capital punishment to collegiality on the Court. Of particular interest to readers of this blog no doubt will be Scalia's comments regarding detention, interrogation, and -- his words -- "so-called torture." The issue of conduct during interrogation is at the heart of just-announced Gitmo prosecutions, as Elena Baylis' post yesterday demonstrated. And as also posted, the question of what rights the Constitution affords Gitmo detainees is at issue in Boumediene v. Bush, now pending before the Court on which the Justice sits.
Here's the exchange, between the BBC's Clive Coleman and Justice Scalia, on those issues:

BBC: If you look at the U.S. Supreme Court’s actions in relation to Guantánamo Bay, people might say, “Well, it took a very long time for you to come down and do the right thing."
SCALIA: Well, now you’re talking about a different issue, Guantánamo Bay, I’m talking about the United States Constitution. The United States Constitution gives rights to Americans wherever they are, and to foreigners who are in America, who are in the United States. It doesn’t give rights to everybody in the world. I don’t, I don’t have a warrant to go investigating the actions of my country throughout the world, to see whose rights they violated. I mean, there may be some natural law up there in the sky, but the American Constitution doesn’t give rights to these people. And that was the principal issue in Guantánamo, whether indeed Guantánamo Bay wasn’t within the United States, and our courts had no jurisdiction there. Just because you would like it to be so does not make it so, it seems to me. You have to consult the text of the document, and the text of the Constitution does not confer rights on people of the world.
BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is a no-brainer?
SCALIA: Well, a lot of people think it is, but I find that extraordinary. To begin with, the Constitution refers to cruel and unusual punishment. It is referring to punishment for crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer, can just commit them to jail until you will answer the question, without any time limit on it, as a means of coercing the witness to answer as the witness should. And I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face, to find out where he has hidden the bomb that is about to blow up Los Angeles, is prohibited by the Consti- .... because smacking someone in the face would violate the 8th Amendment in the prison context, you can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to the society? I think it is not at all an easy question, to tell you the truth.
BBC: It’s a question that’s been raised by Alan Dershowitz and other people, this idea of ticking-bomb-torture. You know. But it’s predicated on the basis that you’ve got a plane with nuclear weapons, that’s flying toward the White House, you happen to have in your possession – hooray – the person who has the key information that can put everything right, and you stick a needle under his fingernail, you get the answer, and that should be allowed.
SCALIA: And you think it shouldn’t.
BBC: I, I ....
SCALIA: All I’m saying is ...
BBC: ... think about it, it’s a bizarre scenario, because the fact is, it’s very unlikely you’re going to have the one person who can give you that information. And so if you use that as an excuse to permit torture, then perhaps that’s a dangerous thing.
SCALIA: It seems to me, you have to say, as unlikely as that is, it would be absurd to say that you, you, can, I don’t know, something under the fingernails, smack him in the face – it’d be absurd to say that you can’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction. But I certainly know that you can’t come in, smugly and, and, uh, with great self-satisfaction and say, “Oh, it’s torture, and therefore, it’s, it’s, uh, no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, “Where is this group that we know is plotting some very painful action against the United States? Where are they and what are they currently planning?"
BBC: If you look at countries with a common law tradition, of which we are one, and you are another, but also, lots of other countries around the world, and in the developing world – if they look at decision of the Supreme Court which affirm the death penalty, and which perhaps affirm torture, although that hasn’t happened yet, does that not set a moral tone?
SCALIA: Well, I urge them not to do that. I don’t look to their law. Why should they look to mine? I don’t purport to be prescribing some universal moral law. I am interpreting the meaning of the text of my Constitution, which was adopted at a certain time by my people, and had a meaning to those people at the time. That’s all I’m doing. I’m not charged with, with figuring out the content of the natural law. If you want to look at our decisions, what you could derive from it is what a wonderful Constitution we have. Or, if you don’t like it, you can say what a terrible Constitution we have. But we don’t pretend to be moral, you know, some Western mullahs, who what decide what is right and wrong for the whole world.
BBC: Well, you don’t, perhaps, but many Americans do pride themselves on living in a country that’s the leader of the free world.
SCALIA: We hope to be the leader of the world. But that is set forth not primarily in our judicial opinions, it’s set forth in our laws. To put all of the praise for that, or the blame, if you want to call it blame, on the Supreme Court, is really quite foolish.

Guest Blogger: Deborah Popowski

Today IntLawGrrls welcomes its 2d guest blogger, Deborah Popowski, author of the above post on accountability, in Argentina and in the United States.
A 3d-year law student at Harvard, Deborah (left), along with fellow student Fernando Delgado, cofounded Stop Torture: The Harvard Anti-Torture Coalition. This Anti-Torture Group's a division of HLS Advocates for Human Rights, a student organization of which Deborah's also co-president. The group provides volunteer support to the Harvard International Human Rights Clinic, coordinates its own projects under faculty supervision, and engages in public education, lobbying, and direct action. Additionally, Deborah's worked on human rights issues in Latin America, Africa, and the Middle East. She interned for Manfred Nowak, the United Nations' current Special Rapporteur on Torture; for Gitanjali Gutierrez, staff attorney for the Guantánamo division of the Center for Constitutional Rights; and for Justiça Global, a Brazilian NGO that litigates before the Inter-American human rights system.
After receiving a degree in political science and social though from the University of Virginia, Deborah worked in journalism and in international development -- including 2 years' service with the Peace Corps. An Argentina-born naturalized U.S. citizen, she is proficient in 5 languages.
Deborah dedicates her post to her own IntLawGrrls inspiration, the suffragist Alice Paul.
Heartfelt thanks for your contribution, Deborah!

Tasers and torture

Even as some in the United States, including its Attorney General, ponder whether practices like waterboarding are "torture," the 10-member U.N. committee that monitors compliance with the Convention Against Torture attached that label to a different practice: It declared Friday that use of the stun-gun weapons known as the Taser "causes acute pain, constituting a form of torture."
Earlier in the week, in Maryland, the NAACP had called for a moratorium on use of the weapons. And in the last month and a half 8 persons, in Poland, Canada, and the United States, have died after police used Tasers on them. The manufacturer, which offers cybersurfers a "virtual tour" of the TaserX26 (above), maintains that the deaths were caused by pre-existing medical problems, and not by "the low-energy electrical discharge of the Taser" of its product; to this, CBS News retorted: "That's 50,000 volts."
The recent fatalities did not directly give rise to the declaration that Taser use constitutes torture; rather, that occurred in Concluding Observations of the Committee Against Torture after reviewing the 4th periodic report of Portugal, which has bought the weapons for its police forces. According to a U.N. release, when an expert "reiterated concern" about this, the state party responded as follows:

Portugal strictly observed the principles of proportionality and reasonableness in the police use of firearms, and existing rules on coercive measures would continue to apply. Twenty taser weapons had been bought and they would only be issued to very specific units dealing with the most serious crimes where there was danger to human life. Prison security services were still evaluating the specific controls that would apply to the use of these weapons. All use of firearms was governed by strict procedures. There had been recent evaluations by the Inspectorate General of Internal Administration and the police were strongly discouraged from using firearms in car chases.

Portugal seems to be following a global trend: in addition to the countries named above, the same weapon already is used by "some 3,000 police officers and gendarmes in France," and expansion of its use to thousands more is contemplated.
Portugal's assurances apparently did not impress Committee experts, however. Page 4 of its Concluding Observations, by my translation from the French, the only version yet available on the web, states:

Utilization of "TaserX26" weapons
14. The Committee is greatly concerned about the State party's recent acquisition of "TaserX26" electric weapons, to be distributed to the Lisbon Metropolitan Command, the Intervention Corps, the Special Operations Group, and the Personal Security Corps. The Committee is worried that the use of these weapons provokes an acute pain, constituting a form of torture, and that in certain cases, it could even cause death, as has been revealed in reliable studies and by recent, actual events.

The Committee then expressly invoked 2 articles of the Convention Against Torture, concluding ¶ 14 in boldface, as follows:

The State party ought to consider renouncing the use of "TaserX26" electric weapons, the consequences of which to the physical and mental state of targeted persons could be of a nature that violates Articles 1 and 16 of the Convention.

The reaction of Portugal -- not to mention other states parties to the Convention -- to this exhortation to abandonment of the weapon remains to be seen.

Not just water under the bridge

Concerns about the nomination of Michael B. Mukasey were posted here the very same day that President George W. Bush tappped him to become the next Attorney General of the United States. At that time it seemed the concerns would fall on deaf ears; reporters predicted little opposition to a man who clearly possesses the credentials for the job. But that's not what happened.
After sailing through the 1st day of Senate Judiciary Committee hearings, in part because he disavowed the so-called "torture memo" of August 1, 2002 (as the Justice Department did years ago; see my article Abu Ghraib), on Day 2 Mukasey foundered, refusing to give a straight answer to a straightforward question. At issue was "waterboarding" -- pretending to drown an interrogee, a tactic that, as we've posted, the United States is said to have deployed against Khalid Sheikh Mohammed and certain other post-9/11 detainees. (The image at left, which reflects concerns about the recent proliferation of depictions of violence, is the one we've used consistently to "illustrate" this topic.)
The question: Is waterboarding torture?
He "remained mum" on this point, and his answer has not changed in the 2 weeks since the hearing. Yesterday, according to the New York Times, Mukasey "said that waterboarding and other harsh interrogation techniques 'seem over the line or, on a personal basis, repugnant to me; and promised to review the legality of such methods if confirmed." But as to "whether waterboarding, which simulates drowning, was illegal torture," he "could not say."
That position prompted Senators Christopher Dodd (D-Conn.) and Barack Obama (D-Ill.) to oppose Mukasey's nomination. Other presidential candidates then followed suit, and with good reason.
There ought to be no doubt that this practice is illegal. It's an assault and battery that has been known at times to result in death. It's cruel, inhuman, and degrading treatment. The United States prosecuted enemies as war criminals for it in prior conflicts. (See Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Columbia Journal of Transnational Law 468 (2007)). And when it's done by state actors in a (misguided) effort to get information, waterboarding fits this definition:

[A]ny 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.

That, according Article 1 of the international convention that the United States ratified more than a decade ago, is torture. Anyone who can't find the words to say so shouldn't be seeking the job of the United States' top law enforcement officer.

Gitmo on the GOP campaign trail

It "revealed a stunning failure to understand" "the duty of the commander in chief to lead the country away from the grip of fear, not into its grasp," wrote 2 Marine Corps generals, 1 the former Commandant of the Corps, the other former commander in chief of the U.S. Central Command. It was a contest "to see who could do the best impersonation of Jack Bauer, torture enthusiast and the central character on Fox's hit show '24,'" wrote Rosa Brooks. "It" was the commentary on Guantánamo -- a term clearly understood to include the question of coercive interrogation -- delivered by candidates at Tuesday's Republican Presidential debate in South Carolina. The remarks of a few were measured, many were not, and all have proved hard to shake. So here's a sampling how Gitmo's faring on the GOP campaign trail:

U.S. Sen. John McCain of Arizona:

The use of torture -- we could never gain as much we would gain from that torture as we lose in world opinion. We do not torture people. When I was in Vietnam, one of the things that sustained us, as we went -- underwent torture ourselves, is the knowledge that if we had our positions reversed and we were the captors, we would not impose that kind of treatment on them.
It's not about the terrorists, it's about us. It's about what kind of country we are. And a fact: The more physical pain you inflict on someone, the more they're going to tell you what they think you want to know.
It's about us as a nation. We have procedures for interrogation in the Army Field Manual. Those, I think, would be adequate in 999,999 of cases, and I think that if we agree to torture people, we will do ourselves great harm in the world.

Former New York Mayor Rudolph W. Giuliani:

... I would tell the people who had to do the interrogation to use every method they could think of. It shouldn't be torture, but every method they can think of -- ... well, I'd say every method they could think of, and I would support them in doing that because I've seen what -- I've seen what can happen when you make a mistake about this, and I don't want to see another 3,000 people dead in New York or any place else.

Former Massachusetts Gov. Mitt Romney:

I'm glad they're at Guantanamo. I don't want them on our soil. I want them on Guantanamo, where they don't get the access to lawyers they get when they're on our soil. I don't want them in our prisons. I want them there.
Some people have said, we ought to close Guantanamo. My view is, we ought to double Guantanamo. We ought to make sure that the terrorists -- and there's no question but that in a setting like that where you have a ticking bomb that the president of the United States -- not the CIA interrogator, the president of the United States -- has to make the call. And enhanced interrogation techniques have to be used -- not torture but enhanced interrogation techniques, yes.

Former Wisconsin Gov. Tommy Thompson:

Is your primary concern U.S. lives or is it how you're going to be perceived in the world? And my standard is U.S. lives, and I'm going to do everything within my power to protect U.S. lives, period.
I will do it. I'll move aggressively forward on it. If we have to later ask and say, "Well, it shouldn't quite have been done this way or that way," that's the way it is. But the standard must be protection of U.S. lives.

U.S. Rep. Duncan Hunter of California:

I would say to SECDEF, in terms of getting information that would save American lives, even if it involves very high-pressure techniques, one sentence: Get the information. Have it back within an hour, and let's act on it. Let's execute with Special Operations or whoever else is necessary, and I will take full responsibility. Get the information.

U.S. Rep. Ron Paul of Texas:

... I think it's interesting talking about torture here in that it's become
enhanced interrogation technique. It sounds like Newspeak.
Nobody's for the torture, and I think that's important. But as far as taking care of a problem like this, the president has the authority to do that. If we're under imminent attack, the president can take that upon himself to do it.

U.S. Rep. Tom Tancredo of Colorado:

Well, let me just say that it's almost unbelievable to listen to this in a way. We're talking about -- we're talking about it in such a theoretical fashion. You say that -- that nuclear devices have gone off in the United States, more are planned, and we're wondering about whether waterboarding would be a -- a bad thing to do? I'm looking for "Jack Bauer" at that time, let me tell you.
... I mean, we are the last best hope of Western civilization. And so all of the theories that go behind our activities subsequent to these nuclear attacks going off in the United States, they go out the window because when -- when we go under, Western civilization goes under.

'Nuff said for today. Gitmo on the Democratic campaign trail tomorrow.