The United States and the Torture Convention: A Memo from Harold Koh

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On Wednesday and Thursday this week, the United States will appear before the United Nations Committee Against Torture for a discussion of the United States’ Third to Fifth Periodic Reports under the Convention Against Torture and Other Cruel and Degrading Treatment. If the size and membership of the United States’ delegation to the Committee is anything to go by, the US is taking the session very seriously indeed. The US delegation includes high level representation from the State, Justice, Defence, Homeland Security and other Departments of the Federal Government as well as representatives of states. The dialogue between the US delegation and the Committee will be webcast here.

One key issue that will come up in the discussion is whether the US accepts that the Convention applies to conduct  of its officials and agents beyond its territory. In the list of issues that the Committee presented to the US in advance of the submission of its report (a list that was prepared five years ago now!), the Committee asked the US to:

“Please provide updated information on any changes in the State party’s position that the Convention is not applicable at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and is not without prejudice to the provisions of any other international instrument, pursuant to article 1, paragraph 2, and 16, paragraph 2, of the Convention.”

In its report, the United States was evasive on the question of the extraterritorial application of the Convention. It stated:

“6.  . . . It should be noted that the report does not address the geographic scope of the Convention as a legal matter, although it does respond to related questions from the Committee in factual terms.”

However, it then went on to note that:

“13. Under U.S. law, officials of all government agencies are prohibited from engaging in torture, at all times, and in all places, not only in territory under U.S. jurisdiction. Under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-163, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the U.S. Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment”), every U.S. official, wherever he or she may be, is also prohibited from engaging in acts that constitute cruel, inhuman or degrading treatment or punishment. This prohibition is enforced at all levels of U.S. government.”

Thus, while the US was indicating that US law and policy forbid torture by US officials wherever committed, it failed to acknowledge that the treaty obligations went this far. The US delegation will no doubt be asked to clarify its position before the Committee. A recent report in the New York Times indicates that there is an internal debate in the US administration about whether to abandon the US’ previous position that that provisions of the Convention Against Torture are restricted to acts on US territory. Apparently, while State Department lawyers are  pushing for a change in this position,

“military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture . . .”

In a recent intervention in this debate, Harold Koh, Sterling Professor of International Law at Yale Law School and, Legal Adviser to the US State Department in first term of the Obama Administration, last week, wrote a “Memo to the President: Say Yes to the Torture Ban,” in Politico Magazine. Professor Koh’s position on this issue is now well known. He is of the view that the US’ rejection of the extraterritorial application of this and other human rights treaties is legally untenable. As Marko wrote earlier this year, two Memo’s written by Harold Koh, while he was Legal Adviser, were leaked in the lead up to the US’ appearance before the Human Rights Committee in the spring of this year. In those memos (available  here and here ), written in his official capacity, he urged the Obama Administration to reverse the US’ categorical rejection of the extraterritorial application of the International Covenant on Civil and Political Rights and of the Convention against Torture.

In his latest “Memo to the President”, Professor Koh summarises his argument and sets out the issues at stake for the US. He says:

Our domestic law already forbids U.S. officials from committing torture, cruel, inhuman or degrading treatment, or administering cruel and unusual punishments. We would reinforce this legal obligation in Geneva by forthrightly acknowledging that it is also illegal for the United States and any other country to do so under international law. If we do not close the legal door on extraterritorial cruelty, other countries—or future U.S. administrations—could cite the same treaty language to claim that they may abuse those whom they hold on foreign soil.

Similarly implausible is the claim that the treaty simply does not apply in armed conflict. If that were so, the Torture Convention would not bar our torturing Al Qaeda detainees  during armed conflict. Abu Ghraib graphically demonstrated the costs of such extraterritorial cruelty.

. . .

What, then, is really at stake? America’s moral leadership. Our commitment to values as part of our national interest. Our smart power. Our claim to be a nation uniquely founded on an unshakeable commitment to protecting fundamental human rights anywhere in the world. If you instruct your subordinates to equivocate in Geneva, you will make us less exceptional and more like those countries who deride and challenge our global leadership.

. . .

Mr. President, you still have time to secure your legacy on this issue. When the experts in Geneva ask us, “does America renounce the use of torture and cruel treatment outside its borders or in armed conflict?,” you should instruct your team to answer with an unqualified “yes.”


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Jordan says

November 11, 2014

And in one of Harold's "internal" memos he made the shocking claim that human rights are displaced as applicable legal standards during armed conflict. What nonsense!
Further, the unavoidable obligation of the U.S. and all members of the UN under Articles 55(c) and 56 to effectuate "universal" respect for and observance of human rights (and, therefore, to not violate human rights anywhere in the universe) covers customary and jus cogens human rights to freedom from torture and from cruel or inhuman treatment -- with an Article 103 override! This unavoidable and overriding obligation under the Charter is also relevant international law for proper interpretation of the CAT (esp. b/c the preamble to the CAT refers to this obligation).

Jordan says

November 11, 2014

Further, the CAT Comm. should stress that violations must be investigated and, where persons are reasonably accused, prosecuted. In Sept. 2006, GW Bush admitted that he had a "program" of "secret detention" (i.e., forced disappearance) and tough interrogation tactics, including waterboarding. Cheney and Rice subsequently admitted that they had facilitated waterboarding and other tough tactics. Others are also reasonably accused of facilitating illegal torture as well as forms of cruel and inhuman treatment -- even by intentionally producing memos that they knew or were aware can or will facilitate the crimes of direct perpetrators.