The Committee Against Torture Urges an End to Guantánamo Detention
International criticism of post-September 11 antiterrorism measures has come to a head with calls from the U.N. body monitoring the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment1 for several changes in U.S. policy - among them, a call for closure of the four-and-a-half-year-old detention camp at Guantánamo.
Conclusions and recommendations of the ten independent experts comprising the Committee Against Torture were issued in mid-May 2006, soon after a two-day hearing in Geneva.2 State Department Legal Adviser John B. Bellinger III and about two dozen other U.S. officials reviewed with the Committee the Second Periodic Report filed a year earlier by the United States, a party to the Convention since 1994.3 Discussion centered on documentation and reports related to two issues: first, the conditions endured by persons whom the United States detains at its naval base at Guantánamo Bay in Cuba, at Bagram prison in Afghanistan, at Abu Ghraib prison in Iraq, and at undisclosed sites across the globe; and second, the extraordinary rendition of some individuals to countries where they have faced harsh treatment, perhaps even torture, at the hands of interrogators.4
Mr. Bellinger acknowledged "actual cases of abuse and wrongdoing that have occurred in the context of the U.S. armed conflict with al Qaeda"; he described such incidents as "relatively few" and "not systemic."5 Without verifying reports that U.S. interrogators had engaged in "water boarding," a technique designed to make an interrogee believe that he is drowning, Mr. Bellinger told the Committee that the technique was prohibited.6 He "reiterate[d] the United States Government's absolute commitment to upholding our national and international obligations to eradicate torture and to prevent cruel, inhuman, or degrading treatment or punishment worldwide."7 He pointed out in this regard that well over two-thirds of all donations to the U.N. Voluntary Fund for Victims of Torture came from the United States.8 He made specific mention of the declaration in the Detainee Treatment Act of 2005 that no one "in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment" - to the extent prohibited by the U.S. Constitution.9 The qualification conformed to a U.S. reservation made on ratification, to the effect that the United States is bound to prevent conduct "only insofar as" required by constitutional bans on "cruel, unusual and inhumane treatment or punishment."10
Similar qualifications marked other aspects of the United States' presentation to the Committee. Mr. Bellinger stated that the post-ratification enumeration of a federal offense of extraterritorial torture sufficed to implement the obligation to criminalize conduct proscribed by the Convention; U.S. criminal laws, he said, already prohibited all acts within U.S. borders that might amount to torture.11 He maintained that the Committee had no brief to consider extraterritorial transfers of persons, for the reason that the Convention did not apply to such action against persons located outside U.S. borders.12 As for executive detention practices in the wake of September 11, Mr. Bellinger asserted that they are "governed by the law of armed conflict" operating as lex specialis to the exclusion of the Convention.13
The Committee's conclusions and recommendations rejected the U.S. position on all these points.
Stating that it "regrets" the U.S. contention that the law of armed conflict precludes application of the Convention, the Committee urged the contrary view "that the Convention applies at all times" to every State party "whether in peace, war or armed conflict, in any territory under its jurisdiction," without detriment to the application of other international law.14 Prolonged U.S. detention of hundreds of persons without charge at Guantánamo "constitutes per se a violation of the Convention," the Committee added, and so wrote:
The State party should cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured, in order to comply with its obligations under the Convention.15
The Committee also called for an end, at any site under the United States' "de facto effective control," of water boarding and any other interrogation technique constituting torture or cruel, inhuman or degrading treatment or punishment.16
On the matter of rendition, the Committee "note[d] with satisfaction" the U.S. statement that it "does not transfer persons to countries where it believes it is 'more likely than not' that they will be tortured," a policy that the United States said applied to anyone held anywhere.17 Yet the Committee refuted the U.S. assertion that the Convention does not extend to a person detained outside the State's own territory. The Committee maintained, rather, that the Convention's requirement that "[n]o State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture" binds parties outside their territory.18 Thus it urged the United States neither to undertake such renditions nor to accept "'diplomatic assurances'" that torture would not be applied from any assuring state that is a "systematic violat[or]" of the Convention.19 The Committee further concluded that a State party holding an individual in "any secret detention facility under its de facto effective control" has committed, "per se, a violation of the Convention"; it thus called upon the United States to investigate, disclose, and condemn all such facilities.20
The Committee not only persisted in its recommendation that the United States extend the federal crime of torture so that it applies explicitly within as well as outside U.S. borders, but also expressed regret that no prosecutions have been initiated under the existing statute "despite the occurrence of cases of extraterritorial torture of detainees."21 Indeed, it exhorted the United States to apply its existing legal framework to investigate and to punish adequately all officials, military and civilian, responsible for the abuse of detainees.22 To that end, though the Committee approved of the ban on improper treatment contained in the Detainee Treatment Act, it expressed concern with the Act's limitation of detainees' access to the federal courts of the United States.23 That portion of the Act is now under review by the U.S. Supreme Court.24
Asked to comment on the conclusions and recommendations, Mr. Bellinger characterized them as "'skewed and reach[ing] well beyond the scope and mandate of the committee'"; nevertheless, he said that the United States would comply with the Committee's request to submit further responses within the coming year.25
This encounter with the Committee against Torture constitutes the latest of several instances in which international legal entities have taken the United States to task for its detention, interrogation, and transfer of persons suspected of membership in al Qaeda or the Iraqi insurgency. The recommendation that the camp at Guantánamo be closed had been preceded by similar calls from, among others, British Attorney General Lord Goldsmith, U.N. Secretary-General Kofi Annan, and a group of five U.N. experts.26 The U.S. exchange with the Committee was preceded as well by U.S. discussions with European officials about the rendition policy, 27 by U.S. refusals to permit the International Committee of the Red Cross and U.N. officials unmonitored access to all detainees, 28 and by U.S. resistance to actions taken by the Inter-American Commission on Human Rights. 29 Though related to incidents since the terrorist attacks of September 11, these disputes frequently have reflected U.S. positions predating that event. U.S. resistance to assertions of jurisdiction by the inter-American human rights system, for example, may be traced to a decision arising out of the United States' 1983 invasion of Grenada.30 U.S. efforts to limit its international treaty obligations to those already imposed by its national constitution are longstanding, as the reservations to the Convention demonstrate.31 The United States has leaned toward an originalist interpretation of treaties that gives priority to sovereignty concerns. But international bodies have tended to favor a dynamic interpretation that gives priority to protection of the individual.
The global dialogue is sure to continue; indeed, the United States is due to return to Geneva on July 17 and18, 2006, for similar hearings before the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights.32
Diane Marie Amann, a member of ASIL's Executive Committee, is Professor of Law at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall). Her scholarship examines the interaction of national, regional, and international legal regimes at play in efforts to combat atrocity and cross-border crime. She has written extensively on U.S. executive detention and interrogation practices since September 11, 2001.
Footnotes
1. Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, Annex, Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984), adopted Dec. 10, 1984, entered into force June 26, 1987, entered into force as to the United States Nov. 20, 1994 [hereinafter Convention Against Torture].
2. Issued in an "Advance Unedited Version," this document may be found at Committee Against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and Recommendations of the Committee against Torture: United States of America, ¶ 22, at 6, CAT/C/USA/CO/2 (May 18, 2006), http://www.ohchr.org/english/bodies/cat/docs/AdvanceVersions/CAT.C.USA.CO.2.pdf (visited May 20, 2006) [hereinafter CAT Recommendations]. The Committee includes a U.S. nominee, Felice Gaer, as well as American University Law Dean Claudio Grossman, nominated by Chile. Other members are from Senegal, Egypt, Spain, Cyprus, Ecuador, Denmark, the Russian Federation, and China. See Office of the High Commissioner for Human Rights, Committee against Torture, http://www.unhchr.ch/html/menu2/6/cat/index.html (visited June 1, 2006); see also Convention Against Torture, supra note 1, arts. 17-24 (describing Committee's composition and duties).
3. Second Periodic Report of the United States of America to the Committee Against Torture, May 6, 2005, available at http://www.state.gov/g/drl/rls/45738.htm (visited May 14, 2006); see CAT recommendations, supra note 2, ¶ 2, at 1 (noting that the report had been due in November 2001). The process for submission and review of state party reports is set forth in the Convention Against Torture, supra note 1, art. 19. For nongovernmental organizations' responses to the U.S. report, see, e.g., Human Rights First, Issues To Be Considered During the Examination of the Second Periodic Report of the United States of America, Apr. 7, 2006, available at http://www.humanrightsfirst.org/us_law/etn/cat/blog/post-050506-rona.asp (visited May 14, 2006); Human Rights Watch, Supplemental Submission to the Committee Against Torture, http://hrw.org/english/docs/2006/05/04/usdom13316.htm (visited May 14, 2006).
4. ASIL Insights analyzing these matters include Mary Ellen O'Connell, The ASIL Centennial Annual Meeting Adopts a Resolution on the Use of Armed Force and the Treatment of Detainees (May 19, 2006); Frederic L. Kirgis, Alleged Secret Detentions of Terrorism Suspects (Feb. 14, 2006); Frederic L. Kirgis, Alleged CIA Kidnapping of Muslim Cleric in Italy (July 7, 2005); Frederic L. Kirgis, Prisoner Transfers Out of Iraq (Oct. 2004); Leila Nadya Sadat, International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces (May 2004); John Cerone, Status of Detainees in International Armed Conflict, and their Protection in the Course of Criminal Proceedings (Jan. 2002).
5. John B. Bellinger III Delivers Opening Remarks at the U.N. Committee Against Torture, May 5, 2006, eMediaMillworks Political Transcripts (published May 10, 2006), available in Westlaw, allnewsplus database [hereinafter Bellinger remarks]. See also Committee Against Torture, Summary Record of the 703d Meeting, Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Second periodic report of the United States of America,¶ 4-5, at 2, CAT/C/SR.703, May 12, 2006, available at http://daccessdds.un.org/UNDOC/GEN/G06/418/46/G0641846.pdf?OpenElement (visited May 20, 2006) [hereinafter Summary Record] (reporting that Barry Lowenkron, assistant secretary of State for democracy, human rights, and labor, described abuse at Abu Ghraib as "inexcusable and indefensible," and told the Committee that "corrective measures were taken").
6. See U.S. agrees to ban interrogation method, Chi. Trib., May 9, 2006, at 14.
7. Bellinger remarks, supra note 5.
8. Id. (stating that the United States had donated more than $32 million to the fund between 2000 and 2005).
9. Section 1003(a) of the Detainee Treatment Act, Pub. L. 109-148, tit. X, 119 Stat. 2680 (Dec. 30, 2005) [hereinafter Detainee Treatment Act], codified at 42 U.S.C. § 2000dd, discussed in Bellinger remarks, supra note 5.
10. U.S. reservations, declarations, and understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, § I(1), Cong. Rec. S17486-01 (daily ed., Oct. 27, 1990). Bellinger thus spoke to the Committee of "cruel, unusual, and inhumane" conduct, even though the Convention uses the adjectives "cruel, inhuman, or degrading." Compare Bellinger remarks, supra note 5, with Convention Against Torture, supra note 1, art. 16. See Detainee Treatment Act, supra note 9, § 1003(a), (d), 42 U.S.C. § 2000dd (using the adjectives in the Convention, but then defining them in a manner identical with the U.S. reservation).
11. See Summary Record, supra note 5, ¶ 22, at 5; id. ¶ 41, at 8. Extraterritorial torture is outlawed by Pub. L. 103-236, tit. V, § 506(a), 108 Stat. 463 (1994), codified as amended at 18 U.S.C. §§ 2340-2340B.
12. See Summary Record, supra note 5, ¶¶ 38-40, at 8; Tom Wright, U.S. defends its record on torture, Int'l Herald Trib., May 10, 2006, at 5.
13. Bellinger remarks, supra note 5 (making argument and stating that the United States nevertheless provided information "in a sincere spirit of cooperation with the Committee").
14. CAT Recommendations, supra note 2, ¶ 14, at 3-4. See Convention Against Torture, supra note 1, art. 2(2) ("No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.").
15. CAT Recommendations, supra note 2, ¶ 22, at 6.
16. Id., ¶ 24, at 7. Cf. Summary Record, supra note 5, ¶ 60, at 11 (reporting Bellinger's statement that "his Government rejected the concept that 'de facto control' equated to territory under its jurisdiction").
17. CAT Recommendations, supra note 2, ¶ 7, at 2.
18. Convention Against Torture, supra note 1, art. 3; see CAT Recommendations, supra note 2, ¶ 20, at 5-6.
19. CAT Recommendations, supra note 2, ¶¶ 20-21, at 5-6.
20. Id., ¶ 17, at 4-5.
21. Id., ¶ 13, at 3; see also id., ¶ 19, at 5 (stating that the United States should "adopt clear legal provisions to implement the principle of absolute prohibition of torture in its domestic law without any possible derogation").
22. Id., ¶ 19, at 5; id., ¶ 26, at 7.
23. See id., ¶ 9(b), at 2; ¶¶ 27-28, at 7-8 (further urging improvement in procedures for determination and review of the lawfulness of detention).
24. The Court may rule on the legality of this aspect of the Act in its decision in the challenge to Guantánamo military commissions. Hamdan v. Rumsfeld, 126 S. Ct. 622 (2005), granting cert. to review 415 F.3d 33 (D.C. Cir.). Having heard oral argument in March 2006, the Court is expected to issue its judgment in Hamdan before the end of this month.
25. Colum Lynch, Military Prison's Closure Is Urged, Wash. Post, May 20, 2006, at A1.
26. See Alan Cowell, Briton Wants Guantánamo Closed, N.Y. Times, May 11, 2006, at A24; Maggie Farley, U.S. Rejects Guantanamo Report, L.A. Times, Feb. 17, 2006, at 4.
27. See Joel Brinkley, US Interrogations Are Saving European Lives, Rice Says, N.Y. Times, Dec. 6, 2005, at A3; Steven R. Weisman & Ian Fisher, U.S. to Respond to Inquiries Over Detentions in Europe, N.Y. Times, Nov. 3, 2005, at A3.
28. See Red Cross slams U.S. for denying prison access, Miami Herald, May 13, 2006, at A22; Farley, supra note 26.
29. On recent Commission action in the case of Omar Khadr, a Canadian who alleges that he has suffered torture in the four years since he arrived, at age fifteen, at Guantánamo, see Rights watchdog wants U.S. intervention, Guelph Mercury (Canada), Mar. 23, 2006, at A8; Tu Thanh Ha, Third Montrealer on detainee list at Guantanamo, Globe & Mail (Toronto), Mar. 10, 2006, at A5. On earlier actions of the Commission, see Diane Marie Amann, Guantánamo, 42 Colum. J. Transnat'l L. 263, 276 (2004); John Cerone, ASIL Insight, The Application of Regional Human Rights Law Beyond Regional Frontiers: The Inter-American Commission on Human Rights and U.S. Activities in Iraq (Oct. 25, 2002).
30. See Coard v. United States, Case 10.951, Inter-Am. C.H.R. 1283, OEA/Ser.L/V/II.106, doc.6 rev., at 1283 (1999), discussed in Amann, supra note 29, at 276, 313-16.
31. See supra text accompanying note 10. Equivalent limitations may be found in, e.g., U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, § I, 138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992).
32. Office of the United Nations High Commissioner for Human Rights, Human Rights Committee, http://www.ohchr.org/english/bodies/hrc/hrcs87.htm (visited May 26, 2006) (providing schedule and links to relevant documents); see Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights, Oct. 21, 2005, http://www.state.gov/g/drl/rls/55504.htm (visited May 14, 2006). The United States has been a party to the International Covenant on Civil and Political Rights, Dec. 16, 1966, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 (1966), since 1992.