Prosecutions of US Officials for Torture? Some Issues

Author: Dapo Akande
Filed under: EJIL Analysis

Sunday
Feb 8,2009

Leon Panetta, US President Obama’s nominee to be Director of the CIA, stated in his confirmation hearings last Thursday that he believes waterboarding to be torture (see here). This is the third admission in recent weeks by senior US officials (or prospective officials) that the US has tortured some of the persons detained now detained in Guantanamo Bay. Similar statements were made by Susan Crawford, Convening Authority for the Military Commisions (see here) and by the new Attorney General Eric Holder (see this Youtube clip). These statements have given rise to intense discussions about whether the US is under an obligation to prosecute those CIA officials who participated in the interrogations and higher level administration officials who approved them. It is therefore of particular interest that Leon Panetta stated categorically that the US will not prosecute those CIA officials who had been involved in harsh interrogations (see here).

Kevin Jon Heller and Philippe Sands have an excellent exchange at Opinio Juris (see here and here) pointing out that under Art. 7(1) of the Torture Convention, the US’ obligation is not quite to prosecute but to submit the cases to its competent authorities for the purposes of prosecution. Those authorities may then apply the standards they would ordinarily apply in cases of ordinary crimes in order to decide whether to initiate prosecution. So, the prosecuting authority may take into account considerations like the availability of evidence, the likelihood of success and, in a system with prosecutorial discretion, issues of policy. Of course, it should be pointed out that a failure by the US to prosecute persons involved in waterboarding or other forms of torture may still be subject to prosecution under the universal jurisdiction scheme of the Torture Convention.

In this post, I intend to raise some legal issues that arise with regard to the liability of US officials for torture and consider whether those legal issues might justify a decision not to prosecute particular officials.

Prosecution of CIA Officials: The first question is whether there may be legal (as opposed to policy) considerations justifying the refusal to prosecute the CIA officials who carried out the torture. Panetta is quoted as saying that:

“It was my opinion we just can’t operate if people feel [that] even if they are following the legal opinions of the Justice Department [they could be in danger of prosecution]“

This could be taken as suggesting a mistake of law defence for persons who relied on the now infamous legal opinions from the US Department of Justice regarding the definition of torture. So the argument is that since these people had it on “good authority” that their actions were legal it would be wrong to prosecute them. Jens Ohlin’s entry on “Mistake of Law in the recently published Oxford Companion to International Criminal Justice (OUP, 2009) says that “In most American jurisdictions, mistakes of law based on official legal advice have to be ‘reasonable’ for the defence to work – if it works at all.” It may be considered reasonable for low level officials to rely on legal advice which comes from the highest possible authority in the government. However, the problem with such an argument is that international criminal law does not, as a general matter, recognise a mistake of law defence, unless the defence negates a mental element of the offence. Moreover, it does not recognise such a defence even if the person concerned relied on legal advice. This may be justified by the fact that international criminal law prohibits particularly heinous acts and persons who commit these acts are morally culpable, even if they consider their acts to be lawful.

However, international law may well recognise one type of mistake of law defence. This is the defence of superior orders. There is a longstanding debate about whether customary international law recognises this defence. The Statutes of the ICTR, ICTY and the Special Court for Sierra Leone provide that superior orders does not relieve of criminal responsibility but may be considered in mitagion of punishment. Nevertheless, this defence is included in Art. 33 of the Statute of the ICC. The defence is recognised only to the extent that the person carrying out the order did not know that the order was unlawful and to the extent that order was not manifestly unlawful. Thus the defence is only available to the extent that there is an order from a superior AND the subordinate is resonably mistaken as to the legality of that order. Hence, the qualification of this defence as provided in the ICC Statute as a type of mistake of law defence (though one not available with regard to genocide and crimes against humanity). There has been considerable debate as to whether it is the ICC provision or the Nuremberg/ICTY/ICTR which represents customary international law. I think there are good arguments for saying it is the former: it represented the law prior to Nuremberg and, under the influence of the ICC statute, is already dominating thinking on the issue. But even if the defence of superior orders is established in customary international law, Art. 2(3) of the Torture Convention provides that “An order from a superior officer or a public authority may not be invoked as a justification of torture. ” Does this provision mean that superior orders is never available with respect to torture. The answer must be no. For one thing, it should be remembered that torture may be prosecuted as a war crime under the ICC statute. Art. 33 of the ICC Statute excludes superior orders as a defence with respect to orders to commit genocide and crimes against humanity but there is nothing to suggest its inapplicability to torture as a war crime. Moreover, Art. 2(3) of the Torture Convention deals solely with the fact that the subordinate has received an order. It does not specifically cover the situations dealt with by Art. 33 of the ICC Statute and customary international law, where the subordinate receives an order which is not manifestly unlawful and the subordinate is subjectively mistaken as to the order’s legality. In such a situation, its not just the order that is invoked as the justification, the order is merely a part of that justification. So, one could read Art. 2(3) Torture Convention and Art 33, ICC Statute consistently by interpreting the former to mean that the mere fact that the accused has received a superior order may not be invoked as a justification. In conclusion, there are reasonable (though not undisputable) grounds for arguing that CIA officials who conducted the interrogations might be able to rely on the category of mistake of law defence which is superior orders.

Prosecution of Higher Level Officials: Reliance on mistake of law and superior orders raises a couple of further issues. To the extent that superior orders is relied on and allowed, it has the effect of immediately establishing the responsibility of higher level officials who gave the orders. So, the Obama Administration is in an escapable bind. If it relies on mistake of law in order to excuse actions of its officials, it is relying on a defence generally unavailable in international criminal law (and which will therefore not prevent foreign prosecutions). To the extent that the US relies on that aspect of mistake of law which incorporates superior orders, as a way of excusing those who carried out the order, the US is admitting the responsibility of those who formulated and gave the orders. Those higher level officials who gave the order or indeed those who formulated the proposals that led to the order will not be able to rely, under international criminal law, on any mistake of law or superior orders defence.

What about the Lawyers? Then there are the US lawyers who gave the advice that is being relied to justify the acts of the CIA officials. Are they liable to prosecution? The Justice Trials (US v. Alstoetter & others) (for extracts, see here), a post WWII prosecution by the US Military Tribunal sitting in Nuremberg conclusively establishes that lawyers may be responsible for war crimes and crimes against humanity with respect to acts committed as lawyers. According to the tribunal:

“Some of the defendants took part in the enactment of laws and decrees the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe. Others, in executive positions, actively participated in the enforcement of those laws and in atrocities, illegal even under German law, in furtherance of the declared national purpose. Others, as judges, distorted and then applied the laws and decrees against Poles and Jews as such in disregard of every principle of judicial behavior. The overt acts of the several defendants must be seen and understood as deliberate contributions toward the effectuation of the policy of the Party and State. The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged. The material facts which must be proved in any case are: (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law. The person who persuades another to commit murder, the person who furnishes the lethal weapon for the purpose of its commission, and the person who pulls the trigger are all principals or accessories to the crime.”

The key point that will need to be established with regard to the US lawyers is their precise mode of individual responsibility. In the Justice Trials, some of the acts of the relevant lawyers themselves constituted the crime: the formulation and enforcement of discriminatory laws; denial of fair trial rights, handing convicts (not sentenced to death) for execution. Also since the defendants were charged with crimes against humanity, the individual acts were seen as part of the general pattern of persecution and extermination. The position is perhaps different with regard to the US lawyers. Their act of interpreting the law is not the act of torture. The question is whether that act can be linked to the torture through one of the recognised modes of responsibility. One possibility is to argue, (as Milan Markovic – not to be confused with our very own Marko Milanovic! – has argued in his article “Can Lawyers be War Criminals?” ) that the acts of the US lawyers may make them aiders and abetters because the lawyers materially contributed to the commission of the crime (torture). Or they may be held responsible for complicity in torture under Art. 4(1) of the Torture Convention. Another alternative would be reliance on the notion of joint criminal enterprise. Here the argument would be that the lawyers shared in a common criminal purpose and contributed to the furtherance of that purpose, with intent that torture be committed. There appears to be no reason why lawyers should be immunised from criminal liability under these theories just because they are lawyers. The only question is whether a lawyer who acts in good faith interpreting the law and who acts reasonably in such interpretation should be held liable for getting the law wrong. From one point of view, to provide a defence to lawyers in such circumstances is to say that lawyers are entitled to benefit from a mistake of law defence when others are not. It would be strange for those who have expertise in law to be able to rely on getting it wrong, while those without such expertise are held liable. On the other hand, a lawyer who does his best in interpreting the scope of international law rules ought not to be punished for merely doing that. But there is the rub of the matter, is the lawyer merely interpreting the rules or is he or she instead seeking to facilitate a system of abuse or egregious conduct. In such a case, lawyers ought to have no immunity.

6 Responses for "Prosecutions of US Officials for Torture? Some Issues"

:/ February 9th, 2009 at 20:59
Thanks for this and preceding posts on various topics. EJIL Talk! made it into my Favourites!
Kevin Jon Heller February 10th, 2009 at 5:48
My thanks to Dapo for the excellent post — and for mentioning my exchange with Philippe. I agree with Dapo that there is no a priori reason why a lawyer could not become part of a JCE through the provision of legal advice, assuming that the lawyer possessed the necessary intent.

That said, I am not convinced that the Justice Case provides much support for that proposition. Readers who are interested are invited to check out my long post on that issue at Balkinization:

http://balkin.blogspot.com/2008/05/john-yoo-and-justice-case.html

Comments on the post would be most welcome!
Dapo Akande February 10th, 2009 at 6:11
Kevin,
Many thanks for your comment. I think your post on Balkinization (which I was unaware of) is excellent. I agree with you that the Justice Case is not the killer case that some thing it is. This is what I hinted at when I mentioned in the post that the position of the US lawyers we are talking about is perhaps different from the lawyers in the Justice case who had been involved in the enforcement of the laws in question. In my view, the key question to consider is whether the lawyers be held individually responsible using one of the modes of responsibility of ICL. There are questions of fact here but on the question of law, whether giving legal advice can in principle constitute taking part in a JCE or be an act of aiding or abetting, I think in theory the answer ought to be yes. In other words, I won’t exclude it. A lawyer ought not to get a pass since a financier won’t. For one thing, giving legal advice can make a material contribution to the commission of the crime. However, I must admit that I struggle with the case of the lawyer who acts in good faith. Perhaps those cases can be taken care of by saying that he or she doesn’t intend to further the criminal purpose of the group. But then the question is how would we reach that determination? Is good faith enough? And what does good faith mean? A person can serious believely that the law permits and ought to permit things that most others would regard as beyond the pale.
Robert Cryer February 10th, 2009 at 18:52
Excellent post, I agree with practically everything in it. It is genuinely rare that I disagree with Dapo. I only ever do so with caution, as it almost inevitably leads to him pointing out something I ought to have taken into account, but didn’t. I am not so sure as Dapo, though, that the Torture convention and the Rome Statute can to be read as not excluding the defence of superior orders as a defence to torture as a war crime.

The drafting history of Article 2(3) (at least as it is recounted in Nowak and McArthur’s excellent commentary) seems to show that the drafters were intending to exclude superior orders as a defence along the Nuremberg lines. It is, of course, true that Dapo’s comment differentiates this from a mistake of law type defence (which Article 33 is). However, in its practice the Committee Against Torture has criticised a number of States for having defences relating to manifest illegality, which implies it covers mistake of law type defences too. (Nowak and McArthur, p.105). In relation to Columbia, a law that permitted reliance on superior orders if the person was unaware of the illegality of their action, the Committee considered this was “inconsistent with the convention” (Ibid., p.104)
In relation to Poland the Committee “recommended that the State party amend the Penal Code to ensure that orders of superiors cannot be invoked in any circumstances, as a justification of torture” (ibid. p.105). This seems to support Nowak and McArthur’s conclusion that 2(3) “is primarily directed at criminal courts not to accept any defence by the accused based on a superior order” (p.121)

If this is the case, the way to read them consistently, to me, is that orders to commit torture are, simply, manifestly unlawful.

This is consistent with Israel’s position before the CAT that “where an order was considered manifestly illegal, as would be the case with an order to commit acts of torture, acting under such an order would clearly not constitute a defence for a person accused of committing such acts” (as recounted, again, in Nowak and McArthur, p.104)

Indeed, given that the Rome Statute permits reference to other applicable treaty law in Article 21, that is what I would argue the ICC ought to do in interpreting Article 33.

Outside of that context as well, it seems clear to me that a State party to the Torture Convention, at least, would not have much room to argue that superior orders could do any work here, other than going to mitigation.
Dapo Akande February 12th, 2009 at 0:42
I don’t intend this to be a mutual adoration society but I am always keen to hear what Rob has to say on these (and other) issues, which is why I have invited him to twice in the past couple of years to lead a seminar in Oxford on superior orders and command responsibility! I have learnt a lot from those seminars.

Rob is right that the practice of the Committee Against Torture suggests that the defence of superior orders is never available under the Torture Convention. But the question is whether the Committee is right to rule out a mistake of law/superior orders type defence if that defence is available under customary international law. As I indicate in my post, I think the treaty may be read in line with customary international law (to the extent that Art. 33 of the ICC Statute represents custom) by restricting Art. 2(3) to cover reliance merely on superior orders. Rob’s way of making the two fit together takes an approach similar to that which the ICC Statute takes with genocide and crimes against humanity. Which is to say an order to commit acts amounting to such crimes is ALWAYS manifestly unlawful. Many have commented (I think Rob included) that this is problematic with respect to crimes against humanity. For example, is it always manifestly unlawful to take part in deportations when the very definition includes a proviso that the deportation or forcible transfer must be without grounds permitted in international law? Presumably there can be some dispute as to which grounds international law permits for deportation.

Although I agree that in the majority of cases it will be clear that causing serious pain or suffering is torture and thus illegal, I think it would be wrong to say that it is always clear that causing such pain is unlawful. For example, the definition of torture in Art. 1 of the Torture Convention excludes pain or which are inherent in or incidental to lawful sanctions. I don’t think that the meaning of that provision is so manifest or clearly obvious such as to rule out any reasonable mistakes as to what it means. Indeed it has been suggested that this provision is meaningless. But given that it is included in the definition in the Convention is that not a ground for some confusion. CIA officials will not be relying on that provision in any potential prosecution but to me this just shows one cannot absolutely say that an order to commit torture will ALWAYS be manifestly illegal.
John C. Dehn February 17th, 2009 at 2:09
Wonderful posts gentlemen. I tend to agree with Rob on the availability of the superior orders/manifest illegality defense under the CAT. It should indeed go to mitigation only — but only when jurisdiction is being exercised under that regime.

I do not read Art. 21 of the ICCSt. as permitting the ICC to ignore Art. 33 in favor of Art. 2(3) of the CAT. If the offence is pursued in the ICC, I believe the ICC must apply its own statute “first” per Art. 21(1)(a). Art. 21(1)(b) appears to be primarily designed for lacunae. All of the clever arguments of the Committee and Commentary notwithstanding, we do no justice to the rule of law by counseling a court to ignore its statute, particularly when that statute declares it must follow it “first”.

Further, as to Art. 33(2), I think a reasonable mistake of fact might render an order to commit genocide or crimes against humanity subject to the superior orders defence. In other words, if there is a reasonable lack of knowledge regarding the contextual element for those offences (meaning either the specific intent requirements of genocide or the widespread or systemic attacks of crimes against humanity), the superior orders defence might still be available. (Admittedly this will apply only in cases at the margins.) Such a mistake of fact would certainly seem to negate the specific intent element of genocide. Less certain is whether the contextual requirement of crimes against humanity requires knowledge of the context, meaning of the widespread or systemic attack against a civilian population, as such. It is certainly arguable, meaning that a mistake of fact would also negate a mental element of those offences. In both cases then, a reasonable mistake of fact might subject those offences to the superior orders defence as knowledge of the context appears to be implicitly (perhaps even necessarily) required by Art. 33(2).