Home 2009 February (Page 2)

Prosecutions of US Officials for Torture? Some Issues

Published on February 8, 2009        Author: 

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. Read the rest of this entry…

Filed under: EJIL Analysis, Torture

One step forward, two steps backward: The ICJ interprets Mexico’s Request for Interpretation of Avena and other Mexican Nationals

Published on February 3, 2009        Author: 

On 19 January 2009, the International Court of Justice formally declined to interpret its judgment in the Case of Avena and Certain Other Mexican Nationals (Avena), which dealt, as did its “predecessor”, the LaGrand case, with the US non-implementation of the Vienna Convention on Consular Relations. Both LaGrand and Avena ended with the clear finding of the Court that the individuals whose rights under the VCCR had not been respected were entitled to review and reconsideration of their judgments and sentences. Specifically in paragraph 153 (9) (of Avena), which formed part of the dispositif, the Court found

… that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the: convictions and sentences of the Mexican nationals …by taking account both of the violation of the rights set forth in Article 36 of the Convention and of paragraphs 138 to 141 of this Judgment.

Failure of the United States to provide such review and reconsideration, would be a breach of its international obligations. In the case of the LaGrands this had been irrevocably the case as they had both been executed in the United States by the time the judgment was delivered. Contrary to the situation in the LaGrand case, all of the individuals whose rights were at issue in the underlying Case of Avena and Certain Other Mexican Nationals were still alive by the time the Court had delivered its judgment on 31 March 2004. In fact, Mr. Medellin was the first for whom an execution date had been set since, which was to be carried out on August 5, 2008. It is in this context that one should put Mexico’s June 5, 2008 filing of a request for interpretation of the Avena judgment, and the request for an order of provisional measures accompanying it, which most importantly sought to halt Mr. Medellin’s execution. With only two months left before Mr. Medellin’s scheduled execution date, the ICJ managed to hold oral arguments and produce an order of provisional measures within the very short timeframe of 41 days.

Judging from Mexico’s initial request, many familiar with Article 60 of the Court’s Statute had early on counted Mexico out. After all, Mexico had the difficult task to convince the Court that it was not simply trying to have another round of proceedings on the United States’ failure to implement Avena. Rather it had to demonstrate that, in the words of Article 60, there was a “dispute as to the meaning or scope of the judgment” allowing the Court to “construe it upon the request of any party”.

Mexico’s initial request seemed ill-equipped to achieve that goal, asking the Court to declare that

..the obligation incumbent upon the United States under paragraph 153(9) of the
Avena Judgment constitutes an obligation of result as it is clearly stated in the
Judgment by the indication that the United States must provide “review and
reconsideration of the convictions and sentences” but leaving it the “means of
its own choosing;”
and that, pursuant to the foregoing obligation of result,
(1) the United States must take any and all steps necessary to provide the
reparation of review and reconsideration mandated by the Avena
Judgment; and
(2) the United States must take any and all steps necessary to ensure that
no Mexican national entitled to review and reconsideration under the
Avena Judgment is executed unless and until that review and
reconsideration is completed and it is determined that no prejudice
resulted from the violation.

Taking the request at face value, it seemed that, unless the United States would be gullible enough to maneuver itself into the position of arguing that the review and reconsideration mentioned in paragraph 153(9) of the Avena Judgment did not refer to an obligation of result (but one of conduct), there would be no way for Mexico to demonstrate the existence of a dispute. Read the rest of this entry…


A Lucky Child, by Thomas Buergenthal

Published on February 1, 2009        Author: 

I wanted to bring to our readers’ attention a wonderful new book that is not about international law, but is about a great international lawyer. Judge Thomas Buergenthal’s memoir, A Lucky Child, has just been published in the United Kingdom and the United States. It had previously been published in Germany, where it has been a bestseller, and in several other European languages.

In the book, Buergenthal tells the story of his survival as a young boy of the horrors of Holocaust. In that, of course, his story is one shared by so many millions – from the flight of his family from Slovakia to Poland, to their life in the ghetto of Kielce, up to their transport to Auschwitz. What is unique about his story is not just his telling of it, which is formidable, and of course that he lived to tell it, but the very number of occasions where the young boy’s survival was determined not only by his wits and the people who were there to help him, but by sheer luck.

Photo Credit: US Holocaust Museum

Photo Credit: US Holocaust Museum

It is hard to describe a person who found himself in Auschwitz as ‘lucky’, but Buergenthal himself has no better word for it. From the fact that there were none of the infamous selections on the day he arrived in Auschwitz, to his survival of the death march when the camp was being evacuated, to an almost fantastic episode when the 11-year old was adopted as a mascot by the advancing Polish soldiers who took him with them to the Battle of Berlin (giving him his first taste of vodka in the process), up to him being discovered by his mother in a Polish orphanage after the war — there can be no doubt that otherwise fickle Fortune was constantly at his side. Though the narrative is often depressing and will bring you to tears, it is a message of hope that will stay with you once you put the book down.

One can only be grateful that such a man now sits in the Peace Palace in The Hague. Buy the book and read it, and be wiser for it. (Amazon UK, Amazon US).

Filed under: EJIL, EJIL Reports