Distinctions Between International and U.S. Foreign Relations Law Issues Regarding Treatment of Suspected Terrorists
June 25, 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. 
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,  a classified memorandum by administration lawyers concluded that the President need not comply with the Convention Against Torture  (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,  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." 
The assertion is controversial. Even though the U.S. Constitution makes the President the Commander-in-Chief of the armed forces,  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 . . ." 
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.  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.  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.  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. 
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."  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.  This position is controversial, at least with respect to members of the armed forces of a party to the conflict.  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.  In addition, it is generally accepted that customary international law prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."  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.'" 
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.  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. 
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.
 For fuller treatment of the international law issues, see Leila Nadya Sadat, ASIL Insights: International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces (May 2004).
 See, for example, Wall St. Journal, June 7, 2004, at p. A1; N.Y. Times, June 8, 2004, at p. A1.
 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).
 18 United States Code sections 2340 & 2340A.
 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.
 U.S. Constitution Art. II, Section 2.
 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).
 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."
 In effect, this incorporates provisions of U.S. law (the Constitution) into U.S. obligations under international law embodied in the Convention Against Torture.
 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.
 See Vienna Convention on the Law of Treaties art. 27.
 Third Geneva Convention art. 13.
 Draft Working Report at p. 4.
 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.
 See, for example, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
 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.
 Draft Working Report at p. 6.
 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.
 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).