Distinctions Between
International and U.S. Foreign Relations Law Issues Regarding
Treatment of Suspected Terrorists
By Frederic L. Kirgis
June 2004
In the media reports on the legal
advice given to the President and other U.S.
officials on permissible and impermissible
methods of interrogating persons suspected
of terrorism, there has been confusion not
only about such things as the meaning of torture,
but also about the applicable bodies of law
that relate to the conduct of U.S. officials,
from the President on down. This Insight
seeks to clarify the relevant distinctions
between international law (primarily, treaties
and custom among nation-states) and the foreign
relations law of the United States (federal
law within the United States regulating the
conduct of foreign affairs), without passing
judgment on the legality of any reported treatment
of prisoners under either of these bodies
of law. [1]
The United States has consistently
regarded international law and U.S. foreign
relations law as overlapping side-by-side
legal systems, rather than as a hierarchical
system in which international law would invariably
trump U.S. law in U.S. courts. The overlap
occurs when specific international law rules
become incorporated into domestic law. This
can occur, for example, when a federal statute
implements a treaty to which the United States
is a party, or when a self-executing treaty
is intended to apply in domestic law without
any statutory implementation. Because the
two systems exist side-by-side, official action
that is lawful under U.S. federal law (for
example, action that is specifically authorized
by a constitutionally-permissible Act of Congress)
could be unlawful under international law
(for example, if it is inconsistent with a
treaty to which the United States is a party).
Conversely, official action that is consistent
with international law (i.e., that is not
prohibited by any applicable treaty or custom)
could be unlawful under U.S. federal law (for
example, if it would violate First Amendment
guarantees of freedom of speech).
As reported by the media, [2] a classified memorandum by administration lawyers concluded
that the President need not comply with the
Convention Against Torture [3] (a treaty to which the United
States is a party) or with the federal statute
criminalizing torture outside the territorial
jurisdiction of the United States,
[4] if the President acts in his capacity
as commander-in-chief of the armed forces
during a war, including the war on terrorism.
Media reports did not clarify whether the
memorandum made that assertion as a matter
of international law or of U.S. foreign relations
law. In fact, it was made as a matter of
U.S. law. According to the memorandum, "Congress
lacks authority under Article I [of the Constitution]
to set the terms and conditions under which
the President may exercise his authority as
Commander-in-Chief to control the conduct
of operations during a war. * * * Congress
may no more regulate the President's ability
to detain and interrogate enemy combatants
than it may regulate his ability to direct
troop movements on the battlefield." [5]
The assertion is controversial.
Even though the U.S. Constitution makes the
President the Commander-in-Chief of the armed
forces,
[6] many lawyers and legal scholars would
argue that this does not give him unfettered
authority under U.S. law to do whatever he
deems appropriate during a military campaign
-- especially if he does something in disregard
of an Act of Congress. In an influential
concurring opinion in the Youngstown Steel
case in 1952, U.S. Supreme Court Justice Robert
Jackson recognized the President's independent
powers under the Constitution, but he added,
"When the President takes measures incompatible
with the expressed or implied will of Congress,
his power is at its lowest ebb . . ."
[7]
Even if the President does have
sole authority under U.S. law and he (or his
delegate) uses it to allow U.S. military personnel
to inflict physical or psychological harm
on detainees, the United States would violate
international law if the harm is actually
inflicted and the conduct violates a treaty
to which the United States is a party -- such
as the Convention Against Torture. But when
the United States ratified the Convention,
it attached its understanding of the meaning
of "torture" in Article 1 of the
Convention. Arguably, the meaning of torture
in the U.S. understanding is more permissive
than the definition set out in the Convention
itself. [8] The United States also attached a reservation
(a statement that modifies the legal effect
of a treaty provision) to Article 16 of the
Convention, which imposes an obligation on
each state party to prevent in any territory
under its jurisdiction "other acts of
cruel, inhuman or degrading treatment."
The U.S. reservation limits that obligation
to acts that would be cruel, unusual and inhumane
treatment or punishment prohibited by the
U.S. Constitution. [9] The "understanding" of Article 1 and the reservation
to Article 16 would establish the limits of
what the U.S. could do without violating the
Convention. [10] In any event, conduct going
beyond the bounds of the U.S. understanding
or reservation would be a breach of the Convention.
A breach of a treaty is a violation of international
law, notwithstanding anything in domestic
law that purports to justify the breach. [11]
The Convention Against Torture
is not the only treaty that could apply to
U.S. treatment of suspected terrorists. The
United States is a party to all four Geneva
Conventions on the laws of war, and to the
International Covenant on Civil and Political
Rights. The third Geneva Convention requires
humane treatment of prisoners of war, and
the fourth Geneva Convention protects civilians
from unnecessary harm. For example, the third
Geneva Convention requires that prisoners
of war be protected against (among other things)
"acts of violence or intimidation and
against insults and public curiosity." [12] Acts of torture or inhuman
treatment against protected persons are grave
breaches of both Geneva Conventions and are
prohibited by the Covenant on Civil and Political
Rights. The permissive U.S. definition of
torture for purposes of the Convention Against
Torture does not, by its terms, apply to any
treaty other than that one.
The U.S. government's position
is that the Geneva Conventions do not apply
to "unlawful combatants," defined
as combatants who do not wear a fixed distinctive
sign, do not carry arms openly, or do not
conduct their operations in accordance with
the laws and customs of war. [13] This position is controversial,
at least with respect to members of the armed
forces of a party to the conflict.
[14] The U.S. has acknowledged that
captured members of the Iraqi armed forces,
but not Taliban or al Qaida forces in Afghanistan,
are entitled to prisoner-of-war status.
As in the case of the Convention
Against Torture, a breach of a Geneva Convention
or of the Covenant on Civil and Political
Rights would be a violation of international
law even if the President or his delegate
authorizes the offending act pursuant to the
President's power as the Commander-in-Chief
of U.S. armed forces.
As has been noted above, custom
among states is another source of international
law. It is not always easy to determine when
or whether a particular practice among states
has risen to the level of custom, but all
agree that some customary rules exist. Many
provisions in the Geneva Conventions are thought
to reflect custom. The norm against torture
has also been recognized as a rule of customary
international law.
[15] In addition, it is generally accepted
that customary international law prohibits
"outrages upon personal dignity, in particular
humiliating and degrading treatment."
[16] The U.S. Department of Justice,
however, "has concluded that customary
international law cannot bind the Executive
Branch under the Constitution, because it
is not federal law. In particular, the Department
of Justice has opined that 'under clear Supreme
Court precedent, any presidential decision
in the current conflict concerning the detention
and trial of al-Qaida or Taliban militia prisoners
would constitute a "controlling"
Executive act that would immediately and completely
override any customary international law.'" [17]
This too is a controversial position.
The controversy cannot be resolved here.
In any event, the Justice Department's position
applies only to U.S. foreign relations law.
Under international law, an Executive act
could not override any established rule of
general (worldwide) custom that is widely
accepted as nonderogable, such as the rule
against torture and the rules prohibiting
conduct that would amount to grave breaches
under the Geneva Conventions.
Even if the President or other
U.S. officials have violated either U.S. foreign
relations law or international law, criminal
prosecution is unlikely. Probably the only
remedy relating to the President under U.S.
law would be impeachment, which of course
is a political matter. As for international
law, the United States has taken steps to
prevent its officials or armed service personnel
from being prosecuted in the International
Criminal Court.
[18] It is possible, though, that criminal
prosecutions or civil proceedings could be
instituted in domestic courts outside the
United States against U.S. officials accused
of authorizing or committing war crimes or
torture, particularly if the cases are brought
after the officials have left office and thus
after they have lost any immunity they have
while in office. [19]
About the Author:
Frederic L. Kirgis is Law Alumni Association
Professor at Washington and Lee University School
of Law. He has written books and articles on
international law, and is an honorary editor
of the American Journal of International Law.
The author is grateful to David Scheffer for
his extremely helpful comments on a draft of
this Insight. Any errors or omissions are the
author's own.
[2] See, for example, Wall St. Journal, June 7, 2004,
at p. A1; N.Y. Times, June 8, 2004, at p.
A1.
[3] Convention Against Torture and Other Cruel, Inhuman,
or Degrading Punishment, Dec. 10, 1984,
23 International Legal Materials 1027 (1984),
as amended, 24 ILM 535 (1985).
[5] Draft Working Group Report on Detainee Interrogations
in the Global War on Terrorism: Assessment
of Legal, Historical, Policy, and Operational
Considerations (6 March 2003), at p. 21.
[7] Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 637 (1952).
[8] According to Article 1 of the Convention, "torture"
means "any act by which severe pain
or suffering, whether physical or mental,
is intentionally inflicted on a person for
such purposes as obtaining from him or a
third person information or a confession
. . . when such pain or suffering is inflicted
by or at the instigation of or with the
consent or acquiescence of a public official
or other person acting in an official capacity."
Under the U.S. understanding of Article
1, reflected also in the federal statute,
"in order to constitute torture, an
act must be specifically intended to inflict
severe physical or mental pain or suffering
and . . . mental pain or suffering refers
to prolonged mental harm caused by or resulting
from (1) the intentional infliction or threatened
infliction of severe physical pain or suffering;
(2) the administration or application, or
threatened administration or application,
of mind altering substances or other procedures
calculated to disrupt profoundly the sense
or the personality; (3) the threat of imminent
death; or (4) the threat that another person
will imminently be subjected to death, severe
physical pain or suffering, or the administration
of mind altering substances or other procedures
calculated to disrupt profoundly the senses
or personality." The U.S. understanding
also says that in Article 1 of the Convention,
"the term 'acquiescence' requires that
the public official, prior to the activity
constituting torture, have awareness of
such activity and thereafter breach his
legal responsibility to intervene to prevent
such activity."
[9] In effect, this incorporates provisions of U.S.
law (the Constitution) into U.S. obligations
under international law embodied in the
Convention Against Torture.
[10] The statement in the text assumes that neither
the understanding nor the reservation is
inconsistent with the object and purpose
of the Convention. A declaration called
an "understanding" could amount
to a reservation if it purports to exclude
or modify the legal effect of the provision
of the treaty to which it relates. See
Vienna Convention on the Law of Treaties
art. 2(1)(d). If a reservation is inconsistent
with the object and purpose of a treaty,
the result could either be that the reserving
state is not actually a party to the treaty,
or that it is a party without the benefit
of the offending reservation. There is
disagreement as to which of these results
is the proper one.
[11] See Vienna Convention on the Law of Treaties
art. 27.
[14] Third Geneva Convention art. 4(A) distinguishes
between members of the armed forces of a
party and members of other combatant groups.
Only with respect to the latter does it
expressly require a fixed distinctive sign,
etc.
[15] See, for example, Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980).
[16] The quoted language is from 1977 Protocol I
(art. 75(2)(b)) to the Geneva Conventions.
The United States is not a party to Protocol
I and thus does not have a treaty obligation
imposed by that Protocol, but article 75
of the Protocol is regarded as verbalizing
a customary rule that binds nation-states
even if they are not parties to the Protocol.
[18] ICC Statute art. 16 precludes prosecution for
12 months after the U.N. Security Council,
acting under Chapter VII of the U.N. Charter,
has requested the Court to that effect.
Article 98(2) requires the Court to honor
international agreements requiring the consent
of a nation-state before a person of that
state may be surrendered to the Court.
The United States has taken advantage of
both of these provisions.
[19] See Frederic L. Kirgis, ASIL Insights:
The Indictment in
Senegal of the Former Chad Head of State
(Feb. 2000), and The
Pinochet Arrest and Possible Extradition
to Spain (Oct. 1998).
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