Could it be that American international law experts and human rights advocates are suffering from some form of Stockholm Syndrome — so many defeats and dashed hopes at the hands of our government that we sometimes take excessive comfort in small and imaginary crumbs that it drops for us? For an example of this, look no further than the United States’ appearance last week before the UN’s Committee against Torture in Geneva – the body established by the Convention against Torture (CAT) to monitor State compliance with the Convention

Rona, Gabor

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LARC Cardoso Law (Yeshida Univ)

Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Online Publications Faculty 11-18-2014 Obama Administration’s Position on the Un Torture Convention: New? Yes. Significant? Not So Much Gabor Rona Benjamin N. Cardozo School of Law, gabor.rona@yu.edu Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-online-pubs  Part of the Human Rights Law Commons, International Humanitarian Law Commons, and the International Law Commons Recommended Citation Rona, Gabor, "Obama Administration’s Position on the Un Torture Convention: New? Yes. Significant? Not So Much" (2014). Online Publications. 80. Available At https://larc.cardozo.yu.edu/faculty-online-pubs/80 This News Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Online Publications by an authorized administrator of LARC @ Cardozo Law. For more information, please contact larc@yu.edu. Justsecurity.orgObama Administration’s Position on the UNTorture Convention: New? Yes. Signi cant?Not so muchby Gabor RonaNovember 18, 2014Could it be that American international law experts and human rights advocates aresuffering from some form of Stockholm Syndrome — so many defeats and dashed hopesat the hands of our government that we sometimes take excessive comfort in small andimaginary crumbs that it drops for us? For an example of this, look no further than theUnited States’ appearance last week before the UN’s Committee against Torture inGeneva – the body established by the Convention against Torture (CAT) to monitor Statecompliance with the Convention.The background is pretty simple. The U.S. is a party to the UN Convention againstTorture. The Convention not only prohibits torture, but consistent with its narrow andspeci c de nition of that term, also prohibits cruel, inhuman and degrading treatment(CIDT) that falls short of torture. It also prohibits a State Party from transferring anyoneto another State where the person faces a risk of torture, a practice known asrefoulement.For a long time, and repeatedly during the post-9/11 Bush administration, the U.S. tookthe view that the treaty’s CIDT and non-refoulement provisions do not apply to itsconduct abroad. The remarkable view that the treaty prohibits such conduct at home butnot when a State Party acts outside of its own borders is unsupported by the treaty text,is rejected by virtually unanimous international jurisprudence, and has long been a stainin the fabric of American claims to be the “indispensible nation” for the projection ofinternational human rights abroad.In its appearance before the Committee against Torture last week, the U.S. said it wasturning a page away from the Bush administration’s rejection of extraterritorialapplication of the CIDT prohibition. But what the U.S. actually said indicates that little, ifanything, has changed. Indeed, the American delegation said that rather than rejectingthe treaty’s extraterritorial application, it will now accept that the treaty applies “inplaces outside the United States that the U.S. government controls as a governmentalauthority.”  Why is there less here than meets the eye?Let’s start with the language of the treaty, which provides that a party must “undertaketo prevent [CIDT] in any territory under its jurisdiction.” The weight of internationaljurisprudence understands this to mean wherever a state exercises “effective control.”That’s not quite everywhere that the state may act – an interpretation that would makecomplete sense given the object and purpose of the treaty to end torture and CIDT by allstate parties everywhere – but it’s much broader than the new U.S. formulation.In fact, one could credibly claim that the U.S.’s phrase, “places a government controls asgovernmental authority” is hardly different than saying one’s own territory, except forsituations of military occupation in which torture/CIDT are prohibited by distinctprovisions of the law of armed con ict.The U.S. interpretation could, in other words, leave CIDT in CIA operated secret prisonsabroad outside the prohibitions of the treaty, depending on how narrowly one construesthese terms. (‘Yes, we did torture some folks in that secret prison we ran in Poland, butit’s not a place our government controls as governmental authority.’) The fact that theU.S. statement in Geneva explicitly included Guantanamo but made no mention of eventhe acknowledged U.S. detention operations in Afghanistan strongly suggests this is areal concern. And given the demonstrated reluctance of the Obama Administration tocomply with its obligation to prevent impunity and hold accountable those responsiblefor Bush-era torture, one might infer why the administration chose to draw the line it didlast week in Geneva.In rejecting the majority “effective control” view, the U.S. gives life to the claim that thetreaty does not prohibit a party from engaging in CIDT abroad. This is no biggieconcerning U.S. conduct going forward, since U.S. law that came too late to cover CIAblack sites already prohibits CIDT by Americans anywhere in the world. But the messagewe send to other countries that have no such laws is simply out of sync with the objectand purpose of the treaty – to create a universal prohibition against torture and CIDT.What’s more, U.S. laws, especially executive orders, can change.Some legal experts have opined that CIDT is already categorically prohibited underinternational law, regardless of CAT’s Article. 16. For example, my colleague, SarahCleveland’s incisive analysis says this:[T]he purpose of the CAT was not to prohibit acts of torture and CIDT. Instead, thepurpose of the CAT was to “make more effective” those prohibitions, which werealready universal, by creating express obligations on States to prevent, prosecute,and remedy violations, as the Preamble makes clear.This is absolutely correct. But it’s just as clear that the U.S. doesn’t buy it. If it did, itwould have simply said that CAT obligations apply to all U.S. government conduct as amatter of international law, whether at home or abroad; or at least where the U.S.exercises “effective control” rather than merely where it exercises governmental control.Former State Department Legal Advisor during the Bush administration, John Bellinger,also weighed in. He says that the Geneva Conventions already prohibit CIDT anywhere,therefore, there’s no legal gap.  What John neglects, though, is that the GenevaConventions apply in wartime only and that a great deal of CIDT can occur outsidethe context of war.That’s why Bush lawyers thought it necessary to malevolently conclude that theConvention’s CIDT prohibition does not operate extraterritorially: if the GenevaConventions prohibited all CIDT anyway, there would have been no “gain” in denying theextraterritoriality of the CAT prohibition. To be fair, John asserts that it is thecombination of the Detainee Treatment Act and the Geneva Conventions that create aseamless web of humane treatment obligations. But the sad fact is that not every countryhas a Detainee Treatment Act.There’s no doubt that the U.S. statement represents a departure from the prevailingviews of the Bush administration on the application of international law. But it’s a tiny,and perhaps even meaningless departure when measured against the true scope of thetreaty’s CIDT prohibition: wherever a party exercises “effective control.”Finally, let me add some further context. There are three more huge problems with U.S.interpretation of its CAT obligations.First, the U.S. doesn’t construe torture to be torture unless it’s “speci cally intended toin ict severe physical or mental pain or suffering.” For example, if the torturer’s intent isto in ict pain just short of torture, but in fact, he crosses the line, that might not beconsidered by the U.S. to be torture.Second, the U.S. has still failed to acknowledge that its non-refoulement obligation alsoapplies extraterritorially.Third, even where the U.S. does acknowledge territorial application of its non-refoulement obligation, it considers itself free to transfer a person to another countryunless torture is “more likely than not.” In other words, if it’s only 50% likely thatsomeone will be tortured if we transfer him to Egypt, then we can transfer him there.The treaty, by contrast has a much lower threshold triggering the non-refoulementobligation:  “substantial grounds for believing that he would be in danger of beingsubjected to torture.”Sarah Cleveland says that the Obama Administration’s Geneva pronouncements are“signi cant and welcome modi cations of Bush administration positions.” Welcome, forsure. But such celebration by international lawyers and human rights advocates may be abit premature given how little the U.S.’s recent concession actually means in practice,and the work that remains to bring the U.S. into the mainstream of international legalthinking on prohibitions of torture and CIDT.  About the Author(s)Gabor RonaGabor Rona (@GaborRona1) is a former Legal Advisor in the Legal Division of the ICRC and formerInternational Legal Director of Human Rights First. He now teaches law of armed con ict, internationalcriminal law and international human rights law at Cardozo Law School.

Obama Administration’s Position on the Un Torture Convention: New? Yes. Significant? Not So Much

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Obama Administration’s Position on the Un Torture Convention: New? Yes. Significant? Not So Much

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