Alleged Secret Detentions of Terrorism Suspects
Allegations have appeared in news reports that the United States is holding some terrorism suspects incommunicado and without trial in detention centers at undisclosed locations outside the United States, perhaps in Eastern Europe. The United States government has not acknowledged the existence of any such detention facilities. The discussion below is based on facts regarding the possible existence of such facilities as reported in news media, and is not intended to vouch for their accuracy. The discussion is designed to point out the principal legal issues relating to incommunicado detention, without reaching any conclusions of law or fact. The discussion does not focus on any specific conduct at a detention center that might amount to torture or inhumane treatment, but rather focuses on issues raised by enforced disappearance of suspected terrorists.
There are two main bodies of international treaty law that could apply to any such disappearances: international human rights law and international humanitarian law (sometimes known as the law of war).
Human Rights Law
The United States is a party to two multilateral human rights treaties that could be applicable: the International Covenant on Civil and Political Rights (the ICCPR, or the Covenant) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture). These treaties have been widely ratified by countries around the world.
Article 9 of the ICCPR provides in part:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law.
. . .
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before
a court, in order that that court may decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful.
Article 10(1) of the ICCPR provides: ?All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.?
There is doubt as to whether the ICCPR applies to a government acting outside its own territory. Article 2(1) says, ?Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction [based on personal characteristics].? A federal appeals court in the United States has said that this language in the ICCPR ?indicates that its provisions govern the relationship between a State [i.e. a national State] and the individuals within the State?s territory.? On the other hand, the leading commentary on the ICCPR says that an ?excessively literal? reading of Article 2(1), which exempts governments from responsibility for the actions of their agents on foreign territory, would defeat the purpose of the Covenant. The UN Human Rights Committee, which supervises implementation of the Covenant internationally, has said that ?a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State party.?
The ICCPR permits States Parties to take measures inconsistent with certain provisions of the Covenant ? including Articles 9 and 10, above ? ?in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,? but only to the extent that the measures are ?strictly required by the exigencies of the situation? and do not violate other obligations under international law (which would include international humanitarian law, discussed below) or discriminate on the ground of race, color, sex, language, religion or social origin. The State Party must notify the other States Parties of the provisions from which it has derogated and of the reasons for doing so. After the 9/11 terrorist attack on the United States, President Bush declared a national emergency. It is still in force. Since Al-Qaeda and other terrorist groups remain a serious threat to the United States, the organized life of the nation is threatened. It is unclear whether the United States complied with the notification requirement of the ICCPR, but even if it did not, the requirement probably amounts only to a promise to notify, and not a condition that would bar any right to derogate from the Covenant if the promise is not kept (assuming, of course, that the other requirements for derogation are met).
Article 7 of the ICCPR says, ?No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.? Under Article 4, paragraph 2 of the ICCPR, the ?public emergency? exception does not apply to Article 7. In a landmark case, the Inter-American Court of Human Rights, interpreting essentially the same provision as ICCPR Article 7 in the American Convention on Human Rights, said that prolonged isolation and deprivation of communications (?disappearances?) are in themselves cruel and inhuman treatment, even if it is not known what has actually gone on during the prolonged isolation of the particular individual. The United States is not legally bound by that decision and is not subject to the Inter-American Court?s jurisdiction; moreover, the decision does not directly interpret the ICCPR, but it is nevertheless a relevant application, by an established human rights tribunal, of a standard that appears almost verbatim in the ICCPR.
As has been noted above, the United States has ratified the ICCPR. But international treaty law permits States Parties to treaties to attach reservations to their consent to be bound, so long as the reservations are compatible with the object and purpose of the treaty. The United States attached a reservation to Article 7 when it ratified the Covenant. The reservation says that ?the United States considers itself bound by article 7 to the extent that ?cruel, inhuman or degrading treatment or punishment? means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.? The UN Human Rights Committee has said that the US reservation to Article 7 is incompatible with the object and purpose of the Covenant. The Committee has said also that the effect of an unacceptable reservation is not that the Covenant will not be in effect for the reserving party, but rather that it is operative for the reserving party without benefit of the reservation. These assertions by the Committee, however, are controversial, and the US government has objected to them. The United States has continued to be treated as a party to the ICCPR. If the US reservation is valid, it would modify the effect of Article 7 and would probably negate whatever impact the Inter-American Court?s application of the comparable provision in the American Convention on Human Rights might have on the application of ICCPR Article 7 to the United States.
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The Convention against Torture says that no exceptional circumstances may be invoked as a justification of torture. (Article 2, paragraph 2.) ?Disappearances,? by themselves, would not amount to torture even under the approach taken by the Inter-American Court of Human Rights. Nevertheless, since the Convention against Torture deals not only with torture, as such, but also (in Article 16) with acts of cruel, inhuman or degrading treatment by public officials, the Inter-American Court?s approach to disappearances could be applied as well to this aspect of the Convention against Torture, unless the relevant State Party has attached a valid reservation to Article 16. The United States has attached the same reservation to Article 16 of the Convention that it attached to Article 7 of the ICCPR. The same questions arise as to the reservation?s validity and effect as arise under the ICCPR.
Article 16 of the Convention against Torture, moreover, contains a territorial limitation that was not present in the case before the Inter-American Court. Article 16 applies only to acts in ?territory under [the State Party?s] jurisdiction.? There was no contention in the case before the Inter-American Court that the disappearance occurred outside the State Party?s territory. As has been noted above, the recent allegations regarding US detention centers assert that they are outside the United States. The US Supreme Court has considered a territorial issue regarding a detention center outside the United States, but only in the context of detainees held at the US base at Guantanamo Bay, Cuba. The Supreme Court held that those detainees are within U. S. jurisdiction and control for purposes of the habeas corpus jurisdiction of US courts. But the Supreme Court relied on the 1903 lease between Cuba and the United States under which Cuba retained sovereignty over the Guantanamo base, while the United States was granted complete jurisdiction and control for as long as it continued to use the base. Other detention facilities operated by US agents outside the United States would not be in the same category as Guantanamo, but they could be regarded as ?territory? under US ?jurisdiction? if the Human Rights Committee?s approach to the territorial provision in the ICCPR is applied to Article 16 of the Convention against Torture.
International Humanitarian Law
The United States is a party to the four Geneva Conventions on the Law of War. The Third Geneva Convention deals with prisoners of war, but it is unlikely that any detained terrorist suspects would fit into the prisoner-of-war categories under the Convention ? essentially, members of the regular armed forces or members of ?volunteer corps? who have characteristics that make them roughly comparable to members of armed forces, such as carrying arms openly.
The Fourth Geneva Convention protects civilians ?who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals,? unless normal diplomatic channels are open between the State of the person?s nationality and the State in whose hands they are. (Article 4.) On the face of it, this could include civilians held in US detention centers anywhere, unless the diplomatic channel exception applies. The diplomatic channel exception presumably would not preclude application of the Convention if the detainee?s government has no reason to know of its national?s detention.
When the Geneva Conventions were prepared in 1949, however, the ?conflicts? they contemplated were armed conflicts between the armed forces of States and armed conflicts ?not of an international character occurring in the territory of one of the High Contracting Parties.? Based on original intent, it may be argued that the war on terrorism is neither of these. But the conflict between the United States (among others) and terrorists might be regarded as an international armed conflict within the currently-understood meaning of the Geneva Conventions, if the terrorists are State-sponsored or perhaps if they are just State-supported. If so, protected persons would be entitled to the full protection of the Fourth Convention. They could be interned ?only if the security of the Detaining Power makes it absolutely necessary.? (Article 42.) They are entitled to have their internment considered by an appropriate court or administrative board. (Article 43.) They have many other rights, including safeguards regarding hygiene and health, respect for their religious practices, a disciplinary regime that is consistent with humanitarian principles, and the right to correspond with the outside world. Furthermore, the detaining State is required to inform the State to which the detainees owe allegiance of the measures taken for executing the protective provisions of the Convention.
Not all detained persons are entitled to all the rights of protected persons under the Fourth Convention. Article 5 says in part, ?Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in favour of such individual person, be prejudicial to the security of such State.? This provision could be read to apply only to persons who were acting within the territory of the detaining State. Even if it applies more broadly, bare suspicion of hostile activities would not suffice; instead, it would have to be a definite suspicion of such activities. In any event, the only rights and privileges that could be withheld are those that could be exercised adversely to the security of the detaining State, such as the right to correspond with the outside world or to receive visits from ministers of the detainees? faith. Moreover, Article 5 contains the overall proviso that ?In each case, such persons shall nevertheless be treated with humanity . . . . They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State . . . .?
If the current terrorism situation is not an international armed conflict within the meaning of the Geneva Conventions, the question arises whether it is an ?armed conflict not of an international character occurring in the territory of one of the High Contracting Parties? under common Article 3 of all four Geneva Conventions. Apparently, that article was originally intended to cover only civil wars or other conflicts contained within a single State. But today there is a growing body of opinion that common Article 3 encompasses any armed conflict that is not between two or more States. Otherwise, it is argued, there would be an inexplicable gap in the coverage of the Geneva Conventions when the very purpose of Article 3 was to ensure that some measure of protection would be given in all instances of armed conflict.
The protections provided by common Article 3 are not nearly as detailed as those found elsewhere in the Fourth Geneva Convention, but they include, as a minimum, a requirement of humane treatment of detained persons without discrimination based on personal characteristics (including religion or faith). Among the acts specifically prohibited by Article 3 are cruel treatment, torture, and outrages upon personal dignity such as humiliating and degrading treatment.
The United States has no reservation to the Fourth Geneva Convention comparable to its reservations to Article 7 of the ICCPR and Article 16 of the Convention against Torture.
The Statute of the International Criminal Court
Finally, Article 7 of the Rome Statute of the International Criminal Court (ICC) specifies torture, enforced disappearance of persons and ?other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health? as crimes against humanity, but only when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The attack need not be a military attack, but it must involve multiple acts pursuant to a State or organizational policy decision. In addition, the acts have to be against a civilian ?population? and not just against individuals.
The United States is not a party to the Rome Statute and has frequently stated that it objects to the ICC. On the other hand, it can be argued that many of the substantive provisions in the ICC Statute are reflections of customary international law. If so, they would bind any State, or at least any State that has not consistently objected to them while the conduct of States, leading to custom, was developing. It does not appear that the United States has consistently objected to the definition of crimes against humanity found in the Statute. Even so, there would be a crime against humanity only if it meets the conditions codified in Article 7 of the ICC Statute.
It has not been the purpose of this Insight to reach any conclusions regarding the legality of the alleged U. S. secret detention centers or of any specific conduct in any detention center. What can be concluded, though, is that if there are secret detention centers that hold suspected terrorists incommunicado for extended periods of time, they raise serious and rather complicated international law questions, as set forth above.
Addendum By Diane Amann
This Insight notes the possibility of derogation from ICCPR rights in time of public emergency, then suggests that such an emergency exists and may justify departures from derogable rights. Though the analysis is plausible, I feel compelled to point out that the U.S. government has rejected it. In its 2d & 3d periodic report to the Human Rights Committee on U.S. compliance with the ICCPR -- a document to be reviewed by the committee this year -- if I am reading correctly, the government states that nothing has triggered an Article 4 derogation. See, from the document available at http://www.state.gov/g/drl/rls/55504.htm#art4:
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Article 4 - States of Emergency
89. Consistent with the information reported in paragraphs 110 ? 127 of the Initial Report, since submission of that report, the United States has not declared a "state of emergency" within the meaning of Article 4 or otherwise imposed emergency rule by the executive branch.
90. However, as reported in that section of the Initial Report, there are statutory grants of emergency powers to the President. Since the submission of the Initial Report, the President has invoked the National Emergencies Act, 50 U.S.C. ? 1601 et seq., to declare a national emergency in the following situations:
In 2001, the President of the United States issued a number of executive orders after the September 11 terrorist attacks that declared a national emergency as a result of those attacks pursuant to the National Emergencies Act, 50 U.S.C. ? ? 1601-1651 (2005).
91. This invocation was misinterpreted by the (OSCE) as action which required derogation under Article 4 of the Covenant. In correspondence with the OSCE, the United States explained that under U.S. law, declarations of national emergency have been used frequently, in both times of war and times of peace, in order to implement special legal authorities and that the Executive Orders made as a result of the September 11 attacks did not require derogation from its commitments under the Covenant.
About the author
Frederic L. Kirgis, an ASIL member, is Law Alumni Association Professor of Law Emeritus at Washington and Lee University. He has written books and articles on international law, including a book on the law of international organizations, and is an honorary editor of the American Journal of International Law. The author is grateful to Richard Bilder for his helpful comments on a draft of this Insight. Any errors or omissions are the author?s own.
 United States v. Duarte-Acero, 296 F.3d 1277, 1283 (11th Cir. 2002).
 See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 43-44 (2d rev. ed. 2005).
 General Comment No. 31, adopted March 29, 2004, in Report of the Human Rights Committee, U.N. Doc. A/59/40 (Vol. 1), at 175, 177 (2004).
 ICCPR Article 4.
 Proclamation 7463 of Sept. 14, 2001, in 66 Fed. Reg. 48199 (Sept. 18, 2001).
 The most recent extension was on Sept. 8, 2005, in 70 Fed. Reg. 54229 (Sept. 13, 2005).
 See Novak, supra note 2, at 92, 105, 106.
 VelÃ¡squez Rodriguez Case, Inter-American Court of Human Rights, Series C, No. 4, para. 156 (1988).
 Vienna Convention on the Law of Treaties, Art. 19.
 U.N. Doc. CCPR/C/79/Add.50, para. 14 (1995).
 U.N. Doc. CCPR/C/21/Rev.1/Add.6, para. 18 (1994), reprinted in Report of the Human Rights Committee, U.N. Doc. A/50/40, vol. 1 (1996).
 For further discussion, see Louis Henken, Gerald L. Neuman, Diane F. Orentlicher & David W. Leebron, Human Rights 783-794 (1999).
 Rasul v. Bush, 542 U.S. 466, 480-481 (2004).
 For further discussion, see ASIL Insight, Status of Detainees in International Armed Conflict, and their Protection in the Course of Criminal Proceedings (Jan. 2002).
 See common Article 2 in all four Geneva Conventions; see also the International Committee of the Red Cross? Commentary on Geneva Convention IV, at 20 (1958).
 Common Article 3 in all four Geneva Conventions.
 See Red Cross Commentary, supra note 15, at 56.
 See Red Cross Commentary, supra note 15, at 36; see also the majority opinion in Hamdan v. Rumsfeld, 415 F.3d 33, 41-42 (D.C. Cir. 2005). The United States Supreme Court has granted certiorari in Hamdan v. Rumsfeld.
 See Derek Jinks, September 11 and the Laws of War, 28 Yale J. Int?l L. 1, 39-41 (2003); Anthony Dworkin, Military Necessity and Due Process: The Place of Human Rights in the War on Terror, in David Wippman & Matthew Evangelista (eds.), New Wars, New Laws?: Applying the Laws of War in 21st Century Conflicts 53, 60-61 (2005). And see Judge Williams? concurring opinion in Hamdan v. Rumsfeld, supra note 18, at 44.
 ICC Elements of Crimes, Doc. ICC-ASP/1/3, p. 116, available at <http://www.un.org/law/icc/asp/1stsession/report/english/part_ii_b_e.pdf>.