On February 3

On this day in ...
... 2006, the International Court of Justice issued a judgment concluding by a vote of 15 to 2 that it had no jurisdiction to consider an application that the Democratic Republic of Congo had lodged 4 years earlier, in which it alleged that Rwanda, one of its neighbors to the east (map credit), had committed

'massive, serious and flagrant violations of human rights and of international humanitarian law' resulting 'from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant violation of the sovereignty and territorial integrity of the Democratic Republic of the Congo, as guaranteed by the United Nations and OAU Charters'.

The ICJ's judgment in Armed Activities on the Territory of the Congo (New Application : 2002) (Democratic Republic of the Congo v. Rwanda), the court declined to exercise jurisdiction based on a laundry list of treaties. It held inapplicable, for instance: the 1984 Convention Against Torture, for the reason that Rwanda was not a state party; and the 1948 Convention Against Genocide, for the reason that Rwanda had attached a pertinent reservation to its ratification of the latter treaty. Nor did it agree with the DRC that Rwanda had waived its right to object to jurisdiction.


(Prior February 3 posts are here, here, and here.)

Domestic violence as torture

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

Recently, reports of detainee abuse in the “war on terror” have dominated the international legal discourse on torture. This focus on detainee abuse, however, should not obscure developments concerning the most common and pervasive form of torture: domestic violence.

Last summer, a landmark judgment for victims of domestic violence, Opuz v. Turkey (2009), was handed down by the European Court of Human Rights (below right). The Court found the Republic of Turkey liable for torture or inhuman or degrading treatment, under Article 3 of the European Convention on Human Rights, because local officials had failed to prevent and redress the abuse of Nahide Opuz and her mother by Opuz' husband. The Court concluded that the state’s response to the abuse “was manifestly inadequate to the gravity of the offences in question,” in spite of noting that the Turkish authorities “did not remain totally passive” and that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.” Turkey was ordered to pay Opuz 30,000 euros in compensation for violating Articles 2, 3, and 14 of the European Convention.

For years, human rights bodies have recognized that state failures with respect to domestic violence can amount to torture. An example is General Comment No. 2 - Implementation of article 2 by States parties, issued in 2008 by the Committee Against Torture.

The ECHR decision in Opuz, however, seems to mark the first time that an international or regional court has held a state accountable for domestic violence, between partners, under a theory of torture — thus establishing the justiciability of the concept. Yet this aspect of the holding has received surprisingly little media attention.

The lack of coverage may be partially due to the fact that, as IntLawGrrl Stephanie Farrior pointed out in a prior post, the Opuz judgment was also remarkable in other respects, including its acknowledgment of domestic violence as a potential form of gender discrimination.

Women’s rights advocates have been pushing for greater recognition of domestic violence as a breach of international human rights for decades, and have made enormous jurisprudential strides. Seminal cases such as Velásquez Rodríguez v. Honduras, decided in 1998 by the Inter-American Court of Human Rights (left), helped establish the concept of state accountability for transgressions by non-state actors. Moreover, the traditional view that domestic violence is inherently a family matter beyond the purview of the state has been challenged by cases like Bevacqua and S. v. Bulgaria, rendered by the European Court of Human Rights in 2008.

As a result, state failures to prevent and redress domestic violence can now be understood to violate a range of human rights. The late Rhonda Copelon (right), to whom I have dedicated this post, explained in early 2009:

The next step in this legal and cultural revolution is to treat gender violence as torture. So far, rape — in war, by the state and where the state does not take measures against it — has been acknowledged in international law as an act of torture. Domestic violence — the most private and most common of all forms of gender violence — is on its way.

The Opuz holding is an important milestone in this regard.

The benefits of a “torture” designation are manifold, and have normative as well as practical value in enhancing legal protections for domestic violence victims:

► These victims of stand to gain from the jus cogens status of the prohibition of torture. It confers a heightened level of international condemnation and sends a clear message that domestic violence is an unqualified violation of human rights.

► Another benefit is the resultant availability of the protections and complaint mechanisms that exist for torture. These can bolster international legal protection for victims of domestic violence.

► A third benefit is the synergistic effect of combining the efforts and resources of advocates focused on feminist issues with those of international human rights generalists.

As Copelon articulated:

Simply recognizing domestic violence as torture will not solve the problem of domestic violence. But . . . it will help make domestic violence a front burner issue, hastening both the impartiality, adequacy and appropriateness of official responses and the cultural revolution that demands absolute and unconditional condemnation of such violence.

Accordingly, as the world laments the mounting evidence of torture perpetrated in the “war on terror,” the same sense of indignation and urgency must be extended to the private torture that countless people endure on a daily basis.

Breaking News: Taylor Conviction Affirmed

We've blogged before on the criminal proceedings against Roy Belfast Jr (a.k.a. Charles MacArthur Emmanuel ) the son of Charles Taylor Sr., former President of Liberia. (See here, here, here, & here) (photo, below right).
Yesterday, the 11th Circuit (Judges Birch, Marcus & Baldock (10th Cir. sitting by designation)) affirmed Taylor Jr.'s conviction and 97-year sentence for torture and other atrocities committed in Liberia in 1999-2003 when Taylor Jr. was the head of the Anti-Terrorism Unit, an elite guard charged with protecting Taylor Sr. and with torturing prisoners. The facts presented at trial were horrific: execution-style killings, prison pits filled with corpses and stagnant water, beheadings, & burnings with hot wax or plastic.
Taylor had appealed his conviction on a number of grounds, including that

• The definition of torture in 18 U.S.C. §2340 (the federal torture statute, see our prior coverage here) exceeded the definition of the crime in the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). Specifically, in what amounted to a facial challenge, he argued that

1. The CAT requires proof that the defendant was acting in order to extract information or other such purposes whereas the statute is silent as to motive (or specific intent if it maybe called that).
2. The CAT requires that the torture must actually result in severe pain or suffering, whereas the statute requries that the defendant act with the specific intent to inflict severe physical or mental pain or suffering.
3. The CAT reaches torture committed by public officials or persons acting in an official capacity, where as the statute reaches torture committed "under color of law."

• The Statute could not apply to conduct committed prior to when Liberia had ratified the treaty or to extraterritorial conduct.
• Congress had no authority to penalize conspiracy to commit torture in §2340A(c) absent a basis to do so in the treaty;
• The conviction under 18 U.S.C. §924, a weapons enhancement charge, was improper because that statute does not apply extraterritorially; and
• There were procedural and evidentiary errors that rendered the trial and outcome fundamentally unfair.

The appeals court rejected each of these arguments in turn.
► With respect to the definition variations, the court ruled that §2340 is a valid exercise of congressional power under the Necessary and Proper Clause, which grants Congress the power to:

make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” U.S. Const. art. I, § 8, cl. 18.

So long as the enactment bears a rational relationship to the treaty, it will be valid. Slight variances between the treaty language and the implementing statute do not make the enactment invalid, so long as the latter tracks the language of the treaty in all material respects. In particular, the court ruled that the CAT created a floor and not a ceiling and that the treaty specifically provides that it is

without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

The fact that the statute penalizes acts taken with the specific intent to commit torture (even if severe pain or suffering is not in fact inflicted) is analogous to attempts to commit torture, which are equally forbidden by the treaty.
► With respect to the question of jurisdiction rationae temporis and loci, the court held that Taylor was bound by territorial and extraterritorial legislation applying to him as a U.S. citizen. In any case, CAT requires penalization for all acts of torture, regardless of where they are committed. Congress is empowered to regulate the conduct of citizens abroad, and any baseline presumption against extraterritoriality is easiy overcome by an express or inferrable contrary intent in the language or nature of the statute.
► With respect to the conspiracy question, the court noted that the CAT requires penalization of complicity and participation in torture, which would include conduct like conspiracy that encourages and furthers the commission of torture by others. That the Hamdan plurality rejected the notion of a conspiracy to commit war crimes as a customary international law offense punishable by military commission was of no moment, because the Taylor indictment did not implicate the law of war and the conspiracy charge had a treaty basis. In addition, the court noted that

extraterritorial jurisdiction over a conspiracy charge exists whenever the underlying substantive crime applies to extraterritorial conduct.

► With respect to §924, about which we've blogged before (see here), the court ruled that it applies extraterritorially so long as the predicate crime applies extraterritorially. In particular, it may be charged in connection with any crime of violence that “may be prosecuted in a court of the United States,” including those crimes with an extraterritorial reach.
► None of the alleged procedural or evidentiary errors had merit. In particular, the court rejected Taylor's claim that he should have been able to obtain copies of classified memoranda on "enhanced interrogation techniques" approved by the U.S. government. The court ruled that those documents had no bearing on the definition of torture contained in the torture statute. Indeed,

The Torture Act contains a specific and unambiguous definition of torture that is derived from the definition provided in the CAT. The language of that statute -- not an executive branch memorandum -- is what controls the definition of the crime.

► Finally, the court confirmed that the 1,164-month sentence is not invalid under the federal sentencing guidelines given the nature of the charges and the underlying events.

Law moves in mysterious ways . . .

The disturbing trend of "pushing back" asylum seekers hit new lows last week when Australia announced that it would suspend asylum applications from Afghanis and Sri Lankans, claiming that both countries have stabilized sufficiently that even refugees can be returned. And on Tuesday, Arizona passed a bill that criminalizes the presence of those without lawful immigration status, risking racial profiling among other rights violations. It seems the fences are getting higher across the developed world, and human rights are pushed to the side as anti-immigrant politics take the fore.
Of course, these policies have raised the ire of immigrants' rights advocates, but we've also seen strong criticism, leveraging the language and power of international law, from unusual quarters. In Italy, where, as I blogged last week, asylum seekers arriving by boat are returned to Libya without even an interview, the Vatican issued a powerful critique of this practice. Paraphrasing without citing the UN Convention Against Torture, Archbishop Agostino Marchetto noted that

No one can be transferred, expelled or extradited towards a state where there is a serious risk that the person will be condemned to death, tortured or subjected to other forms of degrading or inhumane treatment,

and that conditions in some Libyan detention centers are inhumane and degrading.
In the case of Arizona, a more traditional but no less powerful vision of international law was offered up. The Mexican Embassy issued a strongly-worded statement condemning the bill criminalizing undocumented status, noting not only its potential for violating the civil rights of Mexican nationals, but also its potential to upset diplomatic relations between the United States and Mexico. Moreover, the Embassy's spokesperson reiterated the Mexican consulate's commitment to ensuring that the rights of its nationals are respected in the United States.
And in the case of Australia, while a legal response may be forthcoming from the Australian Human Rights Commission, the Tamil Referendum Council of Australia made perhaps the most creative use of international law in responding to the blanket denial of asylum to Sri Lankans. The Council relied on a letter from Human Rights Watch finding that Australia's actions violate the UN Refugee Convention and Protocol to argue that an independent Tamil homeland in northern Sri Lanka is the best way to prevent an influx of refugees and consequent violations of international obligations. In other words, if Australia doesn't want these refugees on its doorstep, it should help to resolve the root causes of flight in Sri Lanka.
Though self-serving to different degrees, the adoption of the language of international law in advocating for the rights of immigrants and refugees is also a reflection of the increasing power of human rights law and indicative of the new life that can be breathed into long-standing principles of foreign affairs and consular protection. And while lawsuits have and will be brought to remedy these rights violations, the use of international law by a variety of actors may start to shift the court of public opinion, which may be more important in enforcing the rights of immigrants.

The Next Best Thing Turns Out Not So Great

We've blogged before about the United States' use of immigration law to seek either criminal or administrative remedies against human rights abusers present in this country. The case against one such defendant was recently dismissed. General Jose Guillermo Garcia of El Salvador (right, on the right) was indicted for:
► 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).
The district court issued an order of dismissal (without prejudice) when the key witness against Garcia (his former immigration lawyer) changed her story on the eve of trial. The Department of Justice has so far resisted criminally prosecuting Garcia for any human rights crime on the ground that the legislation implementing the Torture Convention was enacted after the events in question.
This is the second legal bullet Garcia has dodged, although a $50 million judgment remains outstanding against him in an Alien Tort Statute case brought on behalf of three Salvadoran refugees.

On October 21

On this day in ...
... 1994 (15 years ago today), the United States became a state party to the Convention Against Torture and to the Convention on the Elimination of All Forms of Racial Discrimination, by depositing with the United Nations its instruments of ratification respecting both human rights treaties. As has been its practice in recent decades, the United States attached a series of RUDs -- reservations, understandings, and declarations -- to each of those ratification instruments. IntLawGrrls have tracked the 1st treaty, CAT, here, and the 2d, CERD, through our series here.

(Prior October 21 posts are here and here.)

Holder's Special Prosecutor

Several major news outlets reported this week that Attorney General Eric J. Holder, Jr. is considering appointing a special prosecutor to investigate the interrogation practices employed during the Bush Administration -- a move that would be contrary, perhaps, to President Barack Obama's entreaty to look forward, not backwards. (See especially the fascinating portrait of Holder's dilemma by Newsweek, the source of the Holder photo above right, as well as the Washington Post's coverage). It has been speculated that the move is at least partially motivated by the results of the CIA Inspector General report on torture that may or may not be released earlier than the promised August 31st. One name that has been floated for the position of Special Prosecutor is Assistant U.S. Attorney John Durham from Connecticut (short bio here), who, at the behest of former Attorney General Michael B. Mukasey, is already investigating the destruction of CIA tapes that depicted waterboarding and other interrogation tactics.

Holder's volte face, if he follows through on it, would do much to bring the United States back into compliance with the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which the U.S. joined in 1994. That treaty at Article 4(1) obliges state parties to penalize "all acts of torture":

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

In addition, pursuant to Article 5(1), each state party is to "take such measures as may be necessary to establish its jurisdiction" over such acts when committed

• in any territory under its jurisdiction (the territorial principle of jurisdiction); or
• when the alleged offender is a national (the nationality principle of jurisdiction).

Article 12 mandates that states make immediate inquiries into the facts where

there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13 requires that victims have an opportunity to raise claims of torture to competent authorities:

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

The obligations apply equally to the prohibition against cruel, inhuman and degrading treatment of punishent, a prohibition that is also set forth within the Torture Convention.
The United States implemented the Torture Convention in two ways: first, by enacting a penal statute (18 U.S.C. §2340) and second, by enacting a civil statute (28 U.S.C. §1350 note, the Torture Victim Protection Act). In addition, acts of torture and other forms of cruel treatment may be prosecuted as war crimes under 18 U.S.C. §2441. In addition to these international crimes, the Special Prosecutor could also bring garden variety criminal charges (battery) or recommend courts martial for members of the armed forces and others subject to military jurisdiction.

In terms of the international law charges:
► First: 18 U.S.C. §2340A authorizes prosecutions against U.S. nationals, but only for torture committed "outside the United States." Certainly places like Camp Delta at Guantánamo Bay and Bagram Air Base in Afghanistan are outside the territorial United States. The U.S. Supreme Court has twice ruled, however, that the U.S. Naval Base at Guantánamo is essentially within U.S. jurisdiction. (The first ruling in Rasul v. Bush (2004), extended statutory habeas rights to Guantánamo detainees. Once Congress amended the habeas statute, the Court in Boumediene v. Bush (2008), extended constitutional habeas rights to the same detainees on the recognition that the U.S. exercises "plenary control" over the naval base, even though de jure sovereignty still vests in Cuba. See here for prior blog posts on these rulings.) The question of whether detainees at Bagram Air Base, which number over 600, have habeas rights is currently the subject of litigation in Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). For a discussion, see Kal Raustiala's excellent ASIL Insight. Bagram Air Base, located in an active theatre of war, exists pursuant to a lease similar to that governing GTMO, and the Obama Administration has resisted extending the Boumediene ruling to Afghanistan. This is complicated by the fact that in 2001, the USA Patriot Act of 2001 expanded the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States to include the premises of United States military or other United States Government missions or entities in foreign States. So, bases outside the U.S. were no longer "outside the U.S." within the meaning of §2340. Detention centers not on bases might still have been. The expansion of the SMTJ had the unintended, it is claimed, effect of narrowing the reach of the §2340. This anomaly was corrected by the National Defense Authorization Act for Fiscal Year 2005 (NDAA05), which prospectively amended 18 U.S.C. §2340(3) to read as follows:

“‘United States’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”

So when and where abuses took place will determine the applicability of §2340. Certain provisions of title 18 do apply to the SMTJ, such as assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), manslaughter (18 U.S.C. § 1112), and murder (18 U.S.C. § 1111).

► Second: As an alternative to the torture statute, war crimes charges could potentially be brought under 18 U.S.C. §2441, the War Crimes Act of 1996, which applies to war crimes committed by U.S. nationals "inside or outside the United States". That statute lists torture, cruel treatment, inhuman treatment, mutilation, maiming, serious bodily injury, rape, sexual assault, and sexual abuse as war crimes. As discussed here, however, Congress, with the Military Commissions Act of 2006, amended the War Crimes Act in subtle yet significant ways that made it more difficult to prosecute abusive practices that fall short of torture.

► Finally, although the Attorney General can frame the mandate of the Special Prosecutor as narrowly as he likes -- even restricting him/her to investigate certain departments, etc. -- the Special Prosecutor can follow any leads relevant to the original mandate. This could result in a more wide-ranging investigation, especially given expansive notions of complicity liability. As a result, the special prosecutor’s investigation could implicate the architects of the detainee policy, including the lawyers who gave advice to the Bush Administration. Actual prosecutions would test arguments made in governmental memos about which types of conduct and interrogation methods constitute unlawful torture and other forms of prohibited cruel treatment. This has the potential to bring U.S. law into line with established jurisprudence from the international war crimes tribunals and human rights institutions, which have determined that many acts perpetrated upon detainees at Guantanamo and elsewhere constitute torture.

Even apart from criminal prosecutions, a full-scale investigation could produce information that would achieve some of the aims of the truth commission concept floated earlier this year by some Democrats.

(IntLawGrrls' various posts on these issues of accountability may be found here, here, and here.)

Accountability explored

Kudos to our colleague, Stanford Law's Allen S. Weiner (below left), for dispassionate analysis in The Torture Memos and Accountability, a recent ASIL Insight. (Indeed, down-the-line examination is a hallmark of this feature, making Insights an invaluable resource for anyone trying to separate facts/law from spin on issues of international law). The piece is most timely, given both the efforts to downsize detainee population at Guantánamo about which Naomi Norberg posted yesterday, and the New York Times' lead story yesterday, which asserted: "None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal."
Addressing U.S. criminal law in his ASIL Insight, Allen:
► Explained the significance of the "reasonable reliance" defense of the common law, codified at Model Penal Code § 2.04(3)(b) and accepted in prior federal criminal law precedents. This defense could protect interrogators who, pursuant to Office of Legal Counsel opinions authorizing their behavior, committed acts amounting to torture under the Convention Against Torture and its domestic implementing statute, and that this possibility may underlie the declaration of President Barack Obama that the United States would not seek to prosecute such interrogators. (Prior IntLawGrrls posts here, here, here, and here.) (photos above right from video of interrogation of then-16-year-old Omar Khadr, detailed here and here)
► Confirmed our own conclusion that Obama's declaration does not shield persons who did not rely on the OLC memos, for the simple reason that they wrote those memos. There is no automatic bar to prosecution of lawyers for conspiracy or aiding and abetting torture, Allen explained. But he warned that any such prosecution "could prove difficult," for it would require proof beyond reasonable to doubt "that the purpose of the lawyer's advice was to facilitate conduct that the lawyer knew to be criminal," and such proof likely would be hard to come by.
Turning then to the international arena, Allen:
► Stated on the one hand that if it were refusing to prosecute "on policy grounds" alone the United States might stand in breach of the obligation under Article 7 of CAT -- which it assumed voluntarily when it ratified that anti-torture treaty in 1994 -- to try or extradite a person said to have committed torture. On the other hand, he argued, there may be no breach if the "reasonable reliance" defense grounds the decision.
Other legal considerations yet may prove pivotal. Thus Allen:
► Cited Common Article 3 of the 1949 Geneva Conventions and the statute implementing them, as well as other U.S. laws proscribing conduct the United States admitted occurred during interrogations. To this could be added the International Covenant on Civil and Political Rights, a treaty to which the United States has been a state party since 1992 and Article 7 of which also unequivocally prohibits subject to "torture or to cruel, inhuman or degrading treatment or punishment."
► Noted the potential for other accountability mechanisms in places like Spain, and concluded by reminding that

apart from the question of state responsibility on the part of the United States, it is possible that individual interrogators or lawyers may be subject to criminal prosecution outside the United States.

(The Spanish avenue may face closure, however, as we've posted.)
The Insight underscores that the final chapter in the story of accountability for post-9/11 counterterrorism practices is far from written.

Conspiracy to Commit Torture

Within and without the U.S. government, debate continues about whether there should be legal accountability for the United States’ detainee policies, especially where those policies amounted to a license to torture and otherwise mistreat individuals in U.S. custody. (Prior IntLawGrrls posts on this issue may be found here.) Although little serious debate now occurs about whether particular techniques, such as waterboarding, constitute torture, questions remain as to the theories of penal responsibility that might be employed to reach senior levels of the Bush Administration.

Folks interested in this issue would do well to revisit the case law under the operative statute, the so-called Torture Act, 18 U.S.C. § 2340, which was enacted upon the United States’ ratification of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

One does not have far to go.

To date, the only case to proceed under that statute is that against Charles “Chuckie” Taylor, Jr. aka Charles Emmanuel (left), the son of ex-President Charles Taylor of Liberia and a presumptive U.S. citizen who was apprehended at the Miami airport on passport fraud charges. (See posts here). He was later indicted by a grand jury for torture, conspiracy to commit torture and carrying or using firearms in connection with a felony (an enhancement statute, 18 U.S.C. § 924). The most important opinion generated during the case is here: United States v. Charles Emmanuel, 2007 U.S. Dist. LEXIS 48510 (S.D. Fl. July 5, 2007) (upholding constitutionality of the federal torture statute).

An oft-overlooked aspect of the Torture Act is that it criminalizes not only the commission and attempted commission of acts of torture, but also the conspiracy to commit torture:

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

This provision does not find a direct parallel in the Torture Convention, which at Article 4 directs state parties to enact penal legislation as follows:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

The lack of specific mention of conspiracy liability in the treaty is not surprising given that many nations, especially those of the civil law tradition, either reject conspiracy liability outright or utilize more limited notions of conspiracy (in some cases limiting conspiracy liability to crimes against the state, such as sedition).

With representation from the Federal Public Defender, Taylor fils challenged the indictment against him, arguing inter alia that:

► Congress exceeded its authority in enacting the Torture Act, because the definition of torture does not precisely match the treaty definition, as torture can be prosecuted even where the pain and suffering are not inflicted for the purposes of intimidation, coercion, or for obtaining a confession as is stated in the treaty;

► Congress did not intend the Torture Act to apply extraterritorially;

► His prosecution violated the principle of sovereign immunity;

► The statute is void for vagueness, especially in light of contradictory memoranda emerging from the Department of Justice (the 2002 Bybee memo and the 2004 Levin memo superseding the Bybee memo) on the definition of torture; and

► The prosecution lacked a sufficiently nexus to the U.S. in violation of his 5th A due process rights.

The court disposed of these arguments with ease:

► Congress had the authority, and indeed was obligated, to enact the Torture Act in light of the U.S. ratification of the Convention Against Torture, which requires implementing legislation. Congress does not exceed its authority under the Necessary and Proper Clause of Article I of the Constitution when it does not enact treaty language verbatim, so long as the statutory language

bears a rational relationship to the stated objectives of the Convention.

Id. at *24. In any case, the court noted, the Offenses Against the Law of Nations Clause of Article I would also provide the necessary authority. Id. at *25-28.

► The statute applies extraterritorially by its express terms, which reach torture committed “outside the U.S.” Id. at *32-33. Furthermore, the court held that because the substantive statutory provision targets extraterritorial conduct, so too does the conspiracy provision. Id. at *33 (iting United States v. Layton (9th Cir. 1988), overruled on other grounds, Guam v. Ignacio (9th Cir. 1993)).

► On the sovereign immunity argument, the court ruled that the Foreign Sovereign Immunities Act does not apply to criminal actions, per binding 11th Circuit authority in the Noriega case. Id. at *40.

► On vagueness, the court held that the allegations in the indictment, coupled with the specific intent statutory language, sufficiently advised the ordinary person of the prohibited conduct. Id. at *43-45.

► On the due process challenge, the court ruled that the defendant’s presumptive U.S. citizenship (he was born in Boston) was a sufficient nexus to justify the application of the statute against him even for extraterritorial acts with no other connection to the United States. Id. at *45-*47. The Taylor case thus involved the nationality principle of jurisdiction rather than universal jurisdiction per se. The court specifically reserved the question of whether Taylor's mere attempt to enter the United States would have been a sufficient nexus for due process purposes, leaving open the question of whether the U.S. can constitutionally exercise "pure" universal jurisdiction. Id. at *47-48 n.12.

In October 2008, as we posted, a jury convicted Taylor of conspiracy, torture, and the possession of firearms during the commission of same and sentenced him to 97 years’ imprisonment.

It remains to be seen whether Taylor pere will follow in the footsteps of his son.

Across the pond, the Special Court for Sierra Leone recently rejected Charles Taylor Sr.'s Motion for Judgment of Acquittal.

Legal primer for an ex-exec aide

'Let me just say that President Bush was very clear that he wanted to do everything he could to protect the country. After September 11, we wanted to protect the country. But he was also very clear that we would do nothing, nothing, that was against the law or against our obligations internationally. So the president was only willing to authorize policies that were legal in order to protect the country.'

So said Condoleezza Rice, formerly the Secretary of State and National Security Advisor to President George W. Bush, in response to a question posed by a 4th grader at a Washington, D.C., school. The comment followed fast upon Rice's defense of self in response to students at Stanford, the university to which Rice has returned (full video below, (c) Stanford student Reyna Garcia):

'The president instructed us that nothing we would do would be outside of our obligations, legal obligations, under the Convention Against Torture.'
....
'I just said -- the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.'

Worth a reread at this juncture: old chestnuts, like Marbury v. Madison (1803) and the Steel Seizure Case (1952), which establish that executive action must comply with the laws of the United States (including, to name just 2 provisions, the 4th Amendment and the Due Process Clause of the 5th Amendment). Then there's the Constitution's Supremacy Clause. It makes clear that "all Treaties made ... under the Authority of the United States" -- CAT, for instance -- "shall be the supreme Law of the Land." And don't forget Cooper v. Aaron (1958), which holds that it's the Justices of the U.S. Supreme Court, and not executive officials, who have the final say on such questions. For good measure, United States v. Nixon (1974) is worth a look.
Sandwiched in between Rice's latter 2 quotes above was this additional self-defense:

'So that's -- and by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency. ... That's what I did.'

One scurries to reread 18 U.S.C. §§ 2 and 371.

European Court of Human Rights: Criminal universal jurisdiction for torture is OK

In its March 30th decision of inadmissibility in the case of Ould Dah v. France (decision available in French only), the European Court of Human Rights held that France had not violated the prohibition in the European Convention on retroactive punishment when it prosecuted a Mauritanian army officer for acts of torture committed in Mauritania in 1990 and 1991. (photo credit)
As the press release that the Court issued in English explains, Ould Dah came to France in 1998 to attend a military training course, and was arrested after human rights NGOs filed a criminal complaint in 1999. While under investigation for alleged acts of torture and barbarity, Ould Dah was released on bail and fled the country. He was convicted in absentia (his lawyer represented him through all proceedings, an option that satisfies French and European requirements of adversariality) and sentenced to 10 years in prison. He was also ordered to pay civil damages. Ould Dah did not challenge the prosecution per se, but claimed that: it was not foreseeable that France would apply French law rather than Mauritanian law (under which he benefits from a grant of amnesty); and France applied its current Penal Code, adopted in 1994, rather than the Code that was in effect in 1990-1991. The Court's press release covers this in some detail, so I'll discuss other things that struck me in reading the decision.
► For one thing, the Court takes an approach similar to that of the U.S. appellate court in Filártiga (1980). Just like the Filártiga court, the European human rights court compiled an impressive list of international instruments prohibiting torture. Today, unlike in 1980, those instruments are backed up by decisions of international tribunals: the International Court of Justice's 2002 "Arrest Warrant" case (Congo v. Belgium) and the International Criminal Tribunal for the former Yugloslavia's Furundzija, Delacic & Kunarac cases). The Court aligns itself with the ICTY, holding on the basis of this list that the prohibition of torture is a jus cogens norm - and one that was incorporated into French law in 1987.
► The Court also cited the U.N. Human Rights Committee's 1994 General Comment #20 to the International Covenant of Civil and Political Rights. The Comment states that amnesty is generally not compatible with states' duties to investigate acts of torture and protect against their commission within its jurisdiction. Moreover, states cannot deprive individuals of their right to an effective remedy, including compensation. This is particularly interesting because, as the folks at ECHR Blog point out in their discussion of the decision, the European court had to distinguish Ould Dah from its own 2001 holding in Al-Adsani v. United Kingdom. In that case, the Court found there was no violation of Al-Adsani's right to an effective remedy when the UK refused to waive the immunity of Kuwait and the officials named in Al-Adsani's complaint (all of whom were still in office) to allow him to bring a civil suit to obtain compensation for torture. In Ould Dah, the Court emphasized that individual criminal liability was at issue, and that

giving precedence to amnesty laws of the country in which the torture occurred would render the aims of the [Convention Against Torture] meaningless.

The Court did allow that prosecution might "clash with the will to achieve reconciliation in the society at stake," but Ould Dah does not seem to have raised the issue, and the Court gave it rather short shrift. Having determined that no such reconciliation efforts had been undertaken in Mauritania, it found that France's exercise of jurisdiction met the complementarity requirements of Article 17 of the Statute of the International Criminal Court.
While the Court's decision is to be welcomed as further authority on the rank and importance of the prohibition against torture, I am troubled by:
► the unequal rank the decision assigns to victims, implicitly favoring those who have access to criminal proceedings; and
► the implicit precedence the decision gives to the punitive function of criminal trials, even in cases in which more attainable goals -- goals that may be achieved in civil as well as criminal trials -- are reparation for the victims and the use of the trial narrative to heal the injured society.
As Auschwitz survivor Elisabeth Mann was quoted as asking in an earlier post,

'What is punishment for a person who is capable to do such horror?'

Garzón goes for it

Losing jurisdiction over a civil-party complaint against 6 U.S. lawyers by the spin of a judges’ wheel in no way deterred Judge Baltasar Garzón (left) from investigating Bush Administration detention and interrogation practices.
In an auto made public this week, the Spanish judge opened an investigation into allegations of torture, made by 4 ex-detainees, over whose cases he had jurisdiction for the reason that they once were charged in Spain with criminal activity in support of al Qaeda. The 4, Garzón wrote,

claimed that they had suffered different acts of physical or psychological violence during the time of their detention in different countries, while they were under the authority of U.S. officials.

Sites named in the auto: Pakistan, Gambia, Afghanistan's Bagram Prison, and the U.S. military base at Guantánamo Bay, Cuba.
A small sampling of the acts alleged by the 4, according to the auto:
► sleep deprivation and harm to vision, both caused by cells lighted all day and all night;
► constant broadcasting of "patriotic American songs" and other loud music;
► blows to the testicles and to the head;
► forced nudity;
► introduction of water into the nostrils to the point of a sensation of suffocation;
► subjection to extreme heat or extreme cold;
► protracted confinement in a dark, underground place;
► deprivation of food;
► death threats; and
► sexual assault.
Among the legal bases for the investigation the auto cites are the Spanish penal code, the 3d Geneva Convention, and the international Convention Against Torture and its European counterpart.

It's worth noting that the new case is broader than likely would have been authorized under the civil-party complaint. Whereas the latter named 6 Bush Administration lawyers, Garzón's auto makes clear that "intellectual authors" as well as "material implementers" of abuse, those who "authorized" abuse as well as those who "practiced" it, are fair game for his investigation. And if the Spanish court were to secure the presence of any suspect -- a big if -- personal jurisdiction would lie not only on ground of universality, but also that of passive personality. That's because among the 4 alleged victims are 2 nationals: a Spanish citizen and a Moroccan long resident in Spain.

The sweep of this new case ought not to surprise.

Garzón, of course, is the Madrid-based investigating judge whose name has been a human-rights-household word ever since October 1998, when Garzón asked Britain to arrest former Chilean dictator Augusto Pinochet and then extradite him to Spain to face charges that he was responsible for torture of some Spaniards and many Chileans during his rule. Eventually, in January 2000, Britain’s executive refused to extradite notwithstanding a House of Lords ruling authorizing the transfer.
What had taken place in between – as Garzón described at a Stanford Law panel in which IntLawGrrls Naomi Roht-Arriaza and yours truly took part a while back – was an elaborate game of legal cat and mouse. Spain’s executive, which opposed the pursuit of Pinochet, did little to help Garzón as he went forward. At times Garzón enlisted the language skills of family members in order to secure translations of documents that had been delivered to him in English.

The cat and mouse game may resume, given that Spain's Attorney General has publicly opposed investigation by his country's judiciary of the United States' executive officials.

What might be the endgame?

It is true that Pinochet never did appear before a Spanish judge. But it's also true that when Pinochet went home he found that he was disgraced. By the time Pinochet died in 2006, lawsuits abounded against him. Chilean courts had stripped him of immunity. And he had twice endured questioning by an investigating judge -- not Garzón but Juan Guzmán (below left), a Chilean who sought to link him to some of the same crimes once at issue in Spain.
A full account of the facts of Pinochet likely will give cold comfort to the objects of Garzón’s newest investigation.

Time for US to move toward accountability

(My thanks to IntLawGrrls for the opportunity to guest-post on an issue of special importance to the NGO for which I am Executive Director, the Center for Justice and Accountability)

Last week, President Obama released four declassified memos written by the Office of Legal Counsel under the Bush administration. These memos provided a legal framework for the torture of detainees held by the CIA in connection with the "War on Terror." (Prior IntLawGrrls posts here, here, and here.)

The contents of the memos are spine-chilling. Government lawyers employed strained legal reasoning to eviscerate the definition of torture under international and domestic U.S. law. In effect, these memos gave the imprimatur of the U.S. Justice Department to abhorrent and illegal acts. The memos authorized interrogators:

► to slam a prisoner's head against a wall repeatedly;

► to deprive prisoners of sleep for eleven days at a time; and even

► to subject prisoners to "waterboarding," a technique of controlled suffocation that was used extensively by the Spanish Inquisition and by the Khmer Rouge during the genocide in Cambodia. As a result of these legal opinions, one prisoner was waterboarded 183 times.

In one of the memos, Steven G. Bradbury, then Principal Deputy Assistant Attorney General, opines on what constitutes "prolonged mental harm" as a result of torture. In doing so, he cites to Mehinovic v. Vuckovic, CJA's case against a Bosnian torturer Nikola Vuckovic. Bradbury juxtaposes waterboarding, which is used to "induce a sensation of drowning," with the game of "Russian roulette," which CJA clients Kemal Mehinovic, Muhamed Bicic, Safet Hadzialijagic and Hasan Subasic experienced while being held in a Bosnian detention camp. Strangely, Bradbury concludes that that waterboarding is an acceptable form of torture, but "Russian roulette" is not. Needless to say, CJA's clients who have been subjected to waterboarding would disagree.

In the statement accompanying the release of these memos, President Obama stated that he believes strongly in "transparency and accountability." Certainly, transparency is a virtue, and more light must be shed on the torture program outlined in these memos. But transparency alone will not serve to deter torture unless it is followed by accountability. The disclosure of these memos is only the first step in ensuring that the United States will never again violate the prohibition against torture.

It is time to make the next step.

In order to hold the authors of these memos accountable, CJA joins human rights groups around the world in calling on Congress and the Obama administration to investigate and, if warranted, prosecute U.S. officials responsible for torture. Those held responsible should include:

► the interrogators who committed torture,

► the lawyers and senior officials who authorized torture, and

► the medical personnel who oversaw torture.

Investigating torture is not only our moral duty: it is our legal obligation. When the U.S. Senate ratified the Convention Against Torture in 1994, we committed ourselves as a nation not only to refrain from torture but to prosecute perpetrators when there is evidence of a crime.

Recent events show that if the U.S. government fails to enforce its own laws, foreign courts may step into the breach.

One effort to hold U.S. officials accountable in a foreign court is already underway. Last Friday, Judge Baltasar Garzón (left) of the Spanish National Court decided that a criminal complaint against six Bush administration lawyers and advisers could proceed. The complaint alleges that Spanish citizens detained at Guantánamo were subjected to a program of torture devised and authorized by senior Bush administration officials. (Prior IntLawGrrls posts here and here.) Although CJA supports the principle of universal jurisdiction underlying the Spanish criminal complaint, we strongly believe that the endgame must be a formal investigation of the allegations of torture and prosecutions in the U.S. justice system.

The timely release of the OLC torture memos and the Spanish criminal complaint underscore the urgent need for the U.S. government to take this essential step towards accountability.

Our human rights reputation depends on it.

CAT's Double-Edged Sword

This week, the Supreme Court decided Negusie v. Holder, an asylum case that examines the availability of a duress exception to the persecutor bar. I discuss the administrative law and moral philosophy components of the decision over at Concurring Opinions, but I thought that IntLawGrrls readers might be more interested in the lurking role that the Convention Against Torture plays in the opinion.

Mr. Negusie, a dual national of Eritrea and Ethiopia, seeks asylum from the Eritrean government that tortured him and forced him to work guarding prisoners who themselves were persecuted. The crucial question is whether Negusie should be barred from asylum for working as a prison guard or exempted from this bar because his assistance in persecution was the product of duress. Justice Kennedy, writing for the majority, finds that the Board of Immigration Appeals (the administrative body responsible for hearing intermediate asylum appeals) should decide whether the Immigration and Nationality Act contains a duress exception to the persecutor bar, but he makes it fairly clear that he believes such an exception should exist. Scalia's concurrence defers more strongly to the Board, while Stevens' concurrence and dissent opines that the Court should determine whether a duress exception exists and that the Board's role should be limited to laying out the parameters of this exception.

Lurking in the background is the fact that Negusie has been granted deferral of removal under the Convention Against Torture (CAT) because the Immigration Judge found he was likely to be tortured if returned to Eritrea -- and the persecutor bar does not apply to CAT relief. The prospect of denying Negusie asylum might be less appealing if its result would be to return him to Eritrea; by the same token, the availability of CAT relief makes it easier to deny him asylum. It's important to note that deferral of removal is a highly temporary status that doesn't entitle its recipients to freedom from detention, let alone the path to citizenship that asylum offers. Moreover, while asylees can extend protection to their dependent family members in the United States and abroad, the family members of CAT recipients obtain no such benefit.

While it provides broader relief than the Refugee Convention, I worry that, as interpreted through U.S. immigration law, the Convention Against Torture may play a role in diluting not only the generosity of relief available but also standards for protection of those fleeing persecution and torture. Is a more universal but less permanent form of relief better than its more restricted but more generous counterpart? That's not clear to me, and more importantly, I don't think that's a choice that asylum seekers should have to make.

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).