Guantanamo: Futile Attempts at Justice

Despite an executive order closing down the base and a Supreme Court opinion extending habeas corpus to the detainees, many of the 172 remaining Guantanamo Bay detainees have yet to see any results. Some argue that the holdups and delays are necessary in order to be sure the US does not mistakenly release a terrorist. The United States government has stayed the process of gaining freedom for one detainee by claiming it has new information, allegedly procured recently, that may cause the District Court to reverse its decision granting the right of habeas corpus to this particular detainee. Evidence introduced eight years after the initial arrest, as well as multiple other delays by the government do significant harm to the domestic and international perception of the US legal system. Read the full piece describing this detainee’s case by Human Rights USA’s litigation director, Allison M. Lefrak.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202514592032&slreturn=1&hbxlogin=1

IN THE NEWS: Case Against Rumsfeld for Mistreatment of American Citizens Goes Forward

Last Friday, on March 5, 2010, a U.S. judge Judge Wayne R. Anderson (N.D. Ill.) allowed a suit against former Defense Secretary Donald Rumsfeld to go forward (in legalese: the case survived a motion to dismiss). The complaint, which alleges that Rumsfeld authorized torture against U.S. citizens, survived despite the defendant’s vigorous claims of immunity (see our earlier blog entry for more discussion of immunity issues).

According to the Complaint, in 2005, Donald Vance and Nathan Ertel, both American citizens, traveled to Iraq to work for an Iraqi security firm, Shield Group Security (SGS). After suspecting that SGS was paying off local sheiks for influence in obtaining government contracts, Vance and Ertel informed the FBI in Chicago and U.S. officials in Iraq. When SGS officials threatened their lives for revealing company information, Vance and Ertel sought protection from the U.S. military. However, after interrogating Vance and Ertel at the US Embassy, U.S. officials imprisoned them and refused to grant them habeas corpus petitions.

The plaintiffs allege that once they were in custody at a U.S. military base, officials detained these two American citizens as “persons of interest” by invoking authority Rumsfeld had previously granted. Vance was detained for three months and Ertel was detained for over a month without charges and forced to live in extremely unsanitary conditions. During this time, the plaintiffs claim that U.S. officials used tortuous interrogation techniques to attempt to solicit confessions. Some of these techniques included the use of solitary confinement, sleep deprivation, exposure to extreme cold and loud music, and other similarly cruel tactics.
Eventually, both American citizens were released without charges and allowed to return to the U.S. On December 18, 2006, plaintiffs initiated this lawsuit against Rumsfeld for authorizing the alleged constitutional violations they endured during their detention.

For more coverage, see Business Week, the Wall Street Journal, and the Huffington Post.

Prepared by International Justice Project Intern Daniel Cousineau.

IN THE NEWS: Supreme Court Hears Arguments in Samantar Case

The Supreme Court heard arguments yesterday regarding whether former government officials who commit human rights violations should enjoy immunity under the Foreign Sovereign Immunities Act (FSIA).

The petitioner in the case, Mohamed Ali Samantar, served as Vice President, Minister of Defense, and Prime Minister under General Siad Barre in Somalia during a period of intense conflict in the region. Under the command of Samantar, who is now living just outside of Washington, DC, the Somali Armed Forces committed numerous atrocities against Somali citizens. (For more background on Mr. Samantar and the cases leading to the Supreme Court, see our previous post.)

Yesterday’s arguments before the Supreme Court addressed (1) whether a foreign state’s immunity from suit under the FSIA extends to an individual; and (2) whether an individual who is no longer an official of a foreign state retains immunity for acts committed while s/he was acting in that capacity.

In non-legal terms: We don’t allow people to sue foreign governments because that would be a political mess... but what about individual government officials? Who can be held accountable for wrongs they committed and who can use a government position as a reason not to participate in a lawsuit?

Samantar’s lawyers argued that individuals who acted in the official capacity of a foreign government should be protected by FSIA (and thus not be subject to a lawsuit) because “such suits are the equivalent of a suit against the state directly.” Samantar’s attorney argued that while the Torture Victims Protection Act (TVPA) allows torture survivors and their families to bring claims against those who violated their human rights, that statute must be interpreted with existing immunity principles. In other words, FSIA should trump the TVPA. Samantar’s attorneys argue that if there is no explicit exception from Congress or waiver of immunity by the foreign state where a potential defendant is or was an official, no one should be able to hold that person accountable for actions taken in his or her official capacity. Samantar’s lawyers argued that the legislative history shows that the FSIA was intended to codify the common law and international law understandings of foreign governmental immunity and there is no mention of individuals because there was no dispute that the law would apply to individuals.

Attorneys for the Somalis who suffered under the Barre regime argued that the silence of the law shows Congress’ intent not to protect individuals from suit. The attorneys also noted that the TVPA was passed after FSIA and specifically gives torture victims and their families access to U.S. courts. The TVPA, they argued, imposed personal liability on individuals, including those who were acting with actual or apparent authority of the foreign state. Furthermore, if every act of a governmental official amounted to an act of the state, the cause of action under the TVPA would not exist. So the question becomes: can you torture someone and then avoid being held accountable by claiming you were acting on behalf of a foreign government when you did so?

The Deputy Solicitor General argued the Court should allow some lawsuits against individuals, while allowing the U.S. State Department to weigh in on immunity for such individuals.

Nina Totenberg gives a sneak peak at the arguments prior to arguments in Court today.
SCOTUSBlog has short podcasts of attorneys from both sides explaining their arguments.
SCOTUSBlog analysis of the arguments.
Transcript of yesterday’s argument.

Prepared with assistance from IJP Intern Christiaan Segura.

IN THE NEWS: Arrest in U.S. of Former Warlord from Liberia

This week's arrest in New York of George Boley, Sr., an alleged former Liberian warlord, has highlighted the need to pursue prosecutions for Liberia’s past atrocities if Liberia is currently unable to do so itself. According to recent reports, Boley, Sr. is the former leader of an armed rebel group called the Liberian Peace Council (LPC), which is known to have committed rape, torture, extrajudicial killings, arbitrary detention, and forcible recruitment during the fourteen years of armed conflict in the country that lasted until 2003.

The U.S. Immigration and Customs Enforcement (ICE) has charged Boley, Sr. with holding invalid immigration documents and committing extrajudicial killings overseas (as an immigration violation - not as a criminal charge). Boley Sr. now faces removal from the United States. Like former President Charles Taylor, Sr., he received higher educations degrees in the United States before returning to Liberia and entering politics. In 1997, Boley Sr. made an unsuccessful bid for president of Liberia. In the last twenty years, he has traveled between the US and Liberia while raising a family in the United States.

The 60-year-old appeared before immigration officials today, February 24, and denied all charges against him. Another immigration hearing is scheduled for March 16, 2010. If Boley Sr. is found guilty of the administrative charges against him, he could be deported from the United States back to Liberia. If the judge decides to deport him, Boley Sr. says that he will request political asylum to remain in the United States.

Boley Sr. has claimed that the accusations against him are false and alleges that some Liberians who escaped the civil war used fraudulent allegations about the LPC to strengthen their applications for political asylum in the U.S. ICE is amassing and investigating the allegations of atrocities committed by the LPC under Boley’s tenure for its immigration case. ICE stated that “it will not allow the United States to be a safe haven for those trying to avoid prosecution and punishment for crimes committed in their homelands.” Further, “ICE will not relent in [its] efforts to ensure that human rights violators are brought to justice and removed from our communities.”

However, human rights advocates are calling attention to the fact that Liberia currently lacks credible justice mechanisms to prosecute serious crimes committed during its internal conflicts between 1989 and 2003. In its report last year, Liberia’s Truth and Reconciliation Commission (TRC) maintained that the LPC had committed numerous human rights violations, including massacres and sexual crimes. The TRC, which is an advisory body, recommended that Boley Sr. be prosecuted, though no official action has been taken in Liberia to charge him with any crimes. The TRC's final report highlighted problems in the Liberian justice system and called for the establishment of a hybrid international-national tribunal with Liberian and foreign judges to try past crimes. However, many doubt that Boley Sr. would be brought to justice if returned to Liberia.

The inability of the Liberian justice system to adequately prosecute Boley Sr. raises questions as to the duty of the United States to hold him accountable for his violations of international law. Although at this time, neither country has criminally charged him, advocates are backing the possibility of undertaking criminal investigations against Boley Sr. in the United States.

This situation parallels the case of Charles Taylor, Jr., the American-born son of former Liberian president who is now on trial under the auspices of the Special Court for Sierra Leone. In October 2008, a Florida jury found Taylor Jr. guilty of participating in torture and conspiracy to commit torture within Liberia under a 1994 U.S. law commonly known as the Torture Statute, which implemented the United States' obligations as a State Party to the UN Convention Against Torture and which states that U.S. citizens accused of committing torturous acts overseas can be tried in a U.S. federal court. It is unclear at this time whether Boley Sr. will be charged with any crimes and the human rights abuses with which Boley Sr., a non-U.S. citizen, is accused could be prosecuted in the United States under federal laws prohibiting torture and war crimes committed abroad. What is known is that Boley Sr.’s case could have serious implications for holding human rights abusers accountable for their actions.

You can check out other entries on this blog regarding Charles Taylor, Jr. here. For other cases addressing the accountability of foreign officials in the U.S., read about the Samantar case here. On March 3, 2010, the Supreme Court will hear oral arguments in the case of Samantar, a former Somali government official who is believed to have overseen grave human rights violations in Somalia. The question facing the Court is whether former officials of foreign governments who commit human rights violations abroad can use the U.S. as a “safe haven” to avoid being held accountable for their crimes. Check back here for updates on developments in these and other accountability matters.

Written with assistance from International Justice Project Intern Kacey Mordecai.

IN THE NEWS: DOJ Concludes: No Accountability for Torture Memo Attorneys

Last Friday, the Department of Justice (“DOJ”) cleared Bush administration lawyers John Yoo and Jay Bybee of allegations of professional misconduct for their role in authorizing the use of "enhanced interrogation techniques, some of which are considered to be torture, both domestically and internationally.

In the now-infamous “torture memos,” Yoo and Bybee concluded that CIA interrogators could not be prosecuted for using certain interrogation tactics (some amounting to torture) unless they acted with the specific intent to inflict severe pain. Relying on a statute governing health benefits, they defined severe pain as that equivalent to “death, organ failure or serious impairment of bodily functions.” The authors of the memos also concluded that the president's war powers are practically unlimited, allowing him to, as Yoo told one OPR investigator, "order a village of civilians to be [exterminated]."

The long-awaited DOJ decision came from attorney David Margolis, a DOJ career veteran. Margolis was responsible for conducting a final review of DOJ Office of Professional Responsibility ("OPR") report. The report, issued on July 29, 2009, found that Yoo and Bybee wrote the legal memos with significant input from White House attorneys. The OPR report concluded that Yoo and Bybee had committed professional misconduct, and recommended that OPR's findings be referred to state bar authorities for disciplinary action and potential disbarment. For Bybee, a federal judge, the referral to state bar authorities could have also led to an impeachment inquiry.

After reviewing the OPR report, Margolis declined to adopt OPR's conclusions. Instead, he concluded that Yoo and Bybee merely exhibited "poor judgment" in providing legal authorization for the use of torture. Margolis's decision now means the DOJ will not refer Yoo or Bybee for possible disciplinary action before their respective state bar associations. It is now up to state bar disciplinary authorities to take up this issue on their own.

This about-face demonstrates why Attorney General Eric Holder must appoint an independent prosecutor -- someone unaffiliated with the DOJ, the department responsible for the legal authorization of detainee abuse policies -- to conduct a full and impartial investigation into the origins of those policies. Americans deserve to know whether, and to what extent, publicly-elected officials were involved in unlawful conduct.

The DOJ report and related documents are available here.

With assistance from International Justice Project intern Lindsey Ingraham.

Human Trafficking in the United States

Human trafficking is a form of modern day slavery that, after drug dealing, is the second largest criminal industry worldwide; however, due to the nature of human trafficking, it is often difficult to detect and has thus gone widely unprosecuted. According to U.S. Government-sponsored research, each year, approximately 800,000 people are trafficked across national borders into slavery, not including the millions trafficked within their own countries. Victims of trafficking include men, women, teens, and children who are often recruited through forced abduction, pressure from parents, or deception between traffickers and the victim or victim’s parents. Once trafficking occurs, victims are usually transported far from friends and family and kept in isolated surroundings under constant threats of violence or other forms of physical and mental coercion. Traffickers may also confiscate a victim’s visa, passport, or money, making it impossible to leave the situation. Human trafficking may be for the purpose of sex or forced labor: victims often work as prostitutes, domestic servants, or workers in restaurants, sweatshop factories or agriculture for little or no pay and under inhumane conditions.

Although human trafficking has been denounced by several international conventions as a violation of human rights and international norms, no federal law existed on the subject until October of 2000 when the Trafficking Victims Protection Act of 2000 (TVPA) was passed. The TVPA makes trafficking of humans a federal crime and was enacted in order to prevent human trafficking overseas, to protect victims in the U.S., and to prosecute traffickers under federal law. Further, the 2003 reauthorization of the TVPA created a civil remedy allowing survivors of trafficking to collect damages from their traffickers in order to better punish and deter traffickers and compensate victims.

Since 2000, over half of the world’s governments have enacted laws making human trafficking a crime. Despite these efforts, human trafficking often goes undetected and under-prosecuted; however, more attention and publicity has been given to the issue in recent years. In the international arena, Haitian officials have expressed concern over allegations of human trafficking involving children and the sale of human organs following the devastating earthquake on January 12, 2010.

Human trafficking is just as large of a concern in the United States. In South Florida, a concerned citizen’s tip of unusual activity at a suburban house helped uncover a prostitution ring operating out of a network of homes in which trafficked women were forced into the sex trade. In Hawaii, farm owners recently plead guilty to forced labor of workers illegally imported from Thailand. In an effort to toughen state laws against human trafficking, a bill was recently reviewed by a Kansas Senate committee that would make coerced employment a crime punishable by time in prison and would allow police to seize assets of human trafficking rings.

These are just some of the most recent stories involving human trafficking in the news. The problem is ongoing and though it has received more attention recently, we must also act to help rehabilitate victims, punish traffickers, and end the practice of human trafficking. In an effort to compensate trafficking survivors for the violations of their human rights, Human Rights USA is working with the George Washington University Law School International Human Rights Clinic to seek civil damages for victims of human trafficking.

-By Shilpa Deshpande, Legal Intern, Refugee & Detention Project

Haiti: Human rights in a time of disaster

As many of us are aware, a devastating 7.0 magnitude earthquake struck Haiti on January 12, with most of the destruction occurring in the capital, Port au Prince. The death toll is estimated to be at about 200,000 people, with many people still missing, and another 1.5 million people left homeless. The search for survivors continues, as many people are believed to be trapped inside collapsed buildings, even as more quakes and aftershocks continue to beleaguer the already suffering nation.

Amidst the devastation of the earthquake, the protection of Haitians’ basic human rights should be the top priority. Natural disasters such as the Haitian earthquake may destroy infrastructure and order, but they do not alter human rights protections, which require specific protection in such precarious times. Haunting images from the streets of the capital, where thousands of Haitians are now forced to live, show people in great need of food, water, shelter, clothes, and medical supplies. Additionally, the lack of adequate law enforcement personnel in Haiti creates a serious security threat as widespread violence and looting have been reported in Port au Prince.

Because the Haitian government is currently unable to adequately address the needs of its people, the international community has assumed the government’s international obligations by providing humanitarian aid in the form of rescue teams, security troops, and supplies to protect Haitians’ rights to basic needs and security. As required by international standards of disaster relief, special attention must be given to Haitian women and children because of their vulnerability to human rights violations in such an environment. International actors must also ensure that their own activities do not further contribute to human rights violations; aid must be provided equally and indiscriminately.

After basic relief needs are met, protection of Haitians’ human rights must remain a priority. The international community must work with the Haitian government to provide rights beyond basic survival needs, such as the rights to education, health, and work, as well as other political, economic, and cultural rights. International attention must not fade when the initial surprise of the event does and the aftershocks cease. As other survivors of natural disaster will readily attest, the needs of the Haitian people will not end with provision of food, water, and shelter to the displaced persons. The international community should focus on strengthening and rebuilding the Haitian state to provide all human rights protections to its citizens.

The matter of Haitians who seek refuge in other countries, including the United States, must also be addressed. Under international law, individuals have the right not to be forcibly returned to the country they are fleeing if returning would post a threat to their life, security, or freedom. In this regard, the U.S. government has already temporarily suspended deportations to Haiti and has granted temporary protected status to Haitians currently in the U.S., allowing them to reside and work in the U.S. for an additional 18 months. Before initial relief efforts expire, however, the international community should plan how to respect the human rights of Haitian refugees.

The first independent nation in Latin America, Haiti is now widely known only as the Western hemisphere’s poorest nation. The recent earthquake is the latest in a series of hindrances to the country’s progress. To learn a bit more about Haiti, click here for a timeline of key events in Haitian history.

There are many ways for you to aid in Haitian relief efforts. A list of organizations accepting money donations can be found here. Organizations accepting these donations can be found here. For up to date information on Haiti and the relief efforts there, click here.

- By Kacey Mordecai, Legal Intern, International Justice Project

Update regarding Google in China: Meetings and Mobile Phones

A large outcry of support followed Google’s January 12 announcement that it is no longer willing to continue censoring results on Google.cn. This statement by Google is a definite step in the right direction and shows the company’s willingness to take a hard line against the Chinese government. Google is optimistic that it can persuade the Chinese government to agree to changes that will allow the display of uncensored search results. As of Friday, January 15, 2010, Google had not set a deadline for an agreement and, while Google had alerted the Chinese Government to its plan, a spokesperson for Google did not know whether any additional meetings had been scheduled. Pending the results of any agreement with the Chinese government, business will continue as it did before last Tuesday’s announcement. However, while not confirmed as directly related to the dispute with the Chinese government, today Google postponed the launch of its mobile phone in China that was scheduled to occur tomorrow.

For now, the question remains whether Google will have the determination to hold its hard line and follow through on its threat to pull out of China if no acceptable agreement can be reached. Google’s willingness to relinquish a share of the largest internet market in the world would send a powerful message that the company is not willing to compromise the human rights of any people and set an example for other corporations currently doing business in China. We hope that Google will reverse the trend the Reverend Martin Luther King, Jr. noted so many years ago in stating, “Increasingly, by choice or by accident, this is the role our nation has taken, the role of those who make peaceful revolution impossible by refusing to give up the privileges and the pleasures that come from the immense profits of overseas investments.”

For more information on the debate surrounding whether Google will pull out of China click here.

~By Lindsey Ingraham, Legal Intern, International Justice Project

I SEE WHAT? A Discussion of the International Court of Justice (ICJ) and a quick look at the International Criminal Court (ICC)

In recent postings, we have discussed the International Criminal Court (ICC), both in the context of the United States' opposition to the Court and of Attorney General Holder's pending decision regarding the appointment of an independent prosecutor. In response, some of our readers have asked about the difference between the ICC and the International Court of Justice (ICJ). From a city where there seem to be more acronyms than people (especially in August), we bring you a discussion of these two courts...

In October 1943, in the midst of a devastating world war, several States spoke out for the creation of a mechanism capable of ensuring the peaceful settlement of State disputes. The United States was among the leaders of this movement and, together with China, the USSR, and the United Kingdom, issued a declaration urging the prompt establishment of “a general international organization, based on the principle of the sovereign equality” to maintain “international peace and security.” To that end, in 1945, a committee of jurists, chaired by American judge G. H. Hackworth, began to draft the statute of what would become the International Court of Justice (ICJ).

Many Americans are accustomed to attitudes of national isolationism or exceptionalism, but a look at our not-so-distant history reveals we once took a very different approach to international issues. There was indeed a time when the United States was progressive in its view of international law; in fact, the United States was once a vanguard for ensuring international accountability and the building and strengthening of international institutions.

Sadly, not quite forty years later, in 1984, the United States withdrew itself from the compulsory jurisdiction of the ICJ – a court it helped create. (“Compulsory jurisdiction” means that if a dispute involving the US was submitted to the Court, the United States would be required to subject itself to the Court's authority.) In 2005, the United States terminated its acceptance of the Court’s jurisdiction over disputes arising under the Vienna Convention on Consular Relations, a treaty that specifically named the ICJ as the venue for settling such cases.

This blog takes a look at the nature of the ICJ, the United States’ history with the Court, and the implications of our shifting stance with this international body.

What is the International Court of Justice?

The ICJ is the primary judicial organ of the United Nations (U.N.) and has been functioning in this capacity since 1946. The authority to establish the Court is found in Chapter VI of the U.N. Charter on the Pacific Settlement of Disputes, which lists judicial settlement as one of the means suggested to peacefully resolve disagreements between States. [1] (In other words, make complaints, not war.) The Court is only concerned with resolving matters between governments; individuals or other private entities cannot file cases with the ICJ. A “contentious case” before the Court may look like this: Two coast countries, State A and neighboring State B, cannot agree about where to mark the border of the continental shelf (the shallow landmass that extends into the sea), so bring the case before the ICJ to resolve.

Notably, the Court’s jurisdiction over disputes between states exists only on the basis of consent, which means that each State makes the decision regarding the extent to which it will submit to the Court’s authority. Nearly 70 States (or 1/3 of U.N. Member States) recognize the jurisdiction of the Court as compulsory, which, as mentioned above, allows that State to initiate proceedings with the Court, but also requires that State to appear before the Court should proceedings be initiated against it by one or more other States.

States that have not agreed to compulsory jurisdiction can still come before the Court in two ways 1) as signatories to a treaty that specifically names the ICJ as the venue to settle disputes, (approximately 300 treaties refer to the Court in settling disputes); and 2) on a case-by-case basis. Finally, as a court of “dual jurisdiction,” the ICJ not only has the authority to decide contentious cases between States, but may also provide advisory opinions on legal questions at the request of the organs of the U.N. or other specialized agencies.

So why did we need the ICC?

As you may recall from an earlier post, in 2002, the international community established the International Criminal Court – a venue to prosecute individuals responsible for the gravest violations of international law: genocide, crimes against humanity, and war crimes. Unlike the ICJ, which handles disputes between States, the ICC handles cases against individuals and offers recourse to the victims of their heinous crimes. The ICC addressed a significant gap in international accountability by allowing individual victims to assert their human rights, often against leaders of their own State. While the ICC has successfully ended impunity for some of the most serious human rights abuses in recent history, its effectiveness has been weakened by the United States’ refusal to become a party.

The United States and the ICJ

As a founding member of the ICJ, the United States accepted compulsory jurisdiction of the ICJ in 1946. In the next thirty-eight years, the United States was a party to ten cases, in which the Court facilitated the peaceful resolution of disputes, as well as clarified Treaty obligations and principles of international law. However, in 1984, in a dispute between Nicaragua and the United States, the Court held that the United States had violated obligations under the United States-Nicaragua Friendship, Commerce and Navigation Treaty by supporting and aiding military and paramilitary activities in and against Nicaragua.[2] In response to this judgment, the United States withdrew from the case and terminated its acceptance of compulsory jurisdiction.[3] This defiant response to the Court and international community in the mid-80s set the United States on the path to exceptionalism.

At that time, the United States still accepted jurisdiction on a case-by-case basis and as a party to Treaties naming the ICJ as the venue to settle disputes. However, in 1999, another unfavorable judgment planted the seed of complete separation. Under the Optional Protocol to the Vienna Convention on Consular Relations, any alleged violation of the Convention would be resolved by the ICJ. The Protocol requires signatories to submit to the jurisdiction of the ICJ, and allows the Court to “make the final decision when their citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad.”

In 1999, under the auspices of the Convention, Germany sought to halt the imminent execution of Walter LaGrand, a German national being held in the US. In response, the ICJ issued a provisional measure calling on the United States to ensure LaGrand’s death sentence was not carried out, but LaGrand was executed the same day. Two years later, Germany asserted that the United States had 1) violated its legal obligation under the Vienna Convention to give consular officers access to imprisoned nationals; and 2) failed to comply with the ICJ’s provisional measure.

The ICJ found in Germany’s favor, ruling: 1) the United States violated the Convention by not informing the German consulate of the imprisonment and subsequent sentence of LaGrand and his brother (who had been executed for the same crime before Germany made its initial request to the ICJ in 1999); and 2) the provisional measure of the ICJ was binding on the U.S. government. Three years later, after a similar case in which the ICJ ordered the United States to review the convictions of 51 Mexicans who had been sentenced to death without being informed of their right to consular assistance, the United States withdrew from the Optional Protocol. Any guesses who proposed the Protocol in 1963? The United States.

Conclusion

Last March, the U.S. Supreme Court addressed the ICJ’s aforementioned “order to review” regarding the 51 Mexicans sentenced to death in the case Medellin v. Texas. In 2004, President Bush had cooperated with this ruling and ordered trial revisions. However, most courts, including a court in Texas that had sentenced convicted murderer Jose Ernesto Medellin, did not comply with Bush’s instruction. In reviewing the lower court’s “disobedience,” the Supreme Court ruled in favor of Texas and held that “neither (the ICJ) nor the president’s memorandum constitutes directly enforceable federal law that pre-empts state limitations.” [4]

The implications of the landmark Medellin judgment are felt far beyond the enforceability of Consular Treaties, and further erode the United States’ international reputation. A State’s refusal to respect its decisions compromises the ICJ’s ability to function effectively as a forum for peaceful resolution on the international stage. Sixty years ago, the United States was proudly at the center of that stage. Unfortunately, much has changed in a few decades. While most States throughout the world recognize the value and legitimacy of international law, U.S. indifference (at best) and hostility (at worst) to the ICJ and similar international institutions threatens to undermine the very system the United States helped create.

By Nadia Ben-Youssef, Legal Intern, International Justice Project

[1] U.N. Charter. Chapter VI (Art. 33).

[2] Nicaragua v. United States, 1984 I.C.J.Rep. 169 (Order of May 10).

[3] Morrison, Fred L. (January 1987). "Legal Issues in the Nicaragua Opinion”, 81 Am. J. Int'l L. 160, 162.

[4] See Medellin v. Texas, 128 S.Ct. 1346, 1353 (2008).

Taylor, Sr. Trial: An Overview of the International Criminal Court Case Against Liberia's Warlord-Turned-President

Following the First Liberian Civil War, Charles Ghankay Taylor was elected to the Liberian presidency on August 2, 1997. He garnered ninety-seven percent of the vote running on the campaign slogan "[h]e killed my ma, he killed my pa, but I will vote for him." A Libya-trained warlord and commander of the National Patriotic Front of Liberia (NPFL), Taylor and his troops terrorized civilians from 1997 to 2003 as he sought to retain control of Liberia's natural resources and forcibly ward off armed rebel groups such as Liberians United for Reconciliation and Democracy (LURD) and Movement for Democracy in Liberia (MODEL). By August 2003, rebels closed in on the capital city, Monrovia, and thousands of civilians were killed or forced to flee to neighboring countries. United Nations Mission in Liberia (UNMIL) forces soon intervened to implement a cease-fire and facilitate the signing of a comprehensive peace agreement between the warring factions. UNMIL escorted the parties to Accra, Ghana where negotiations ensued.

Meanwhile, the Special Court for Sierra Leone, a joint effort between the UN and Sierra Leone, [1] released Taylor's formerly-sealed indictment as he crossed the border into Ghana. Several months earlier, on March 7, 2003, the UN-backed Special Court had indicted Taylor on 17 counts of crimes against humanity and war crimes in violation of Article 3 and Protocol II of the Geneva Conventions. It is important to note that this indictment resulted from Taylor's role in the Sierra Leonean Civil War, not the Liberian conflict. Charges included murder, sexual enslavement, rape, terrorist acts, cruel and inhumane treatment, collective punishment of civilians, conscripting child soldiers, and pillage. The UN later amended the indictment to 11 counts, but further charged Taylor with funding, arming, and training the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) of Sierra Leone, allegedly in exchange for a stake in the illicit diamond trade and political support. Leaders from these same rebel groups gained worldwide notoriety for their brutal torture tactics, including decapitation, mass rape, and severing the hands and feet and other body parts of suspected dissidents. In 1997, they became the first parties to be convicted in an international court of conscripting child soldiers.

Facing international pressure from NGOs and heads of state alike, Taylor signed the pending peace agreement on August 11, 2003, stepped down as President, and fled to Nigeria, where he had been offered asylum by then-President Olusegun Obasanjo. On December 4th, the International Criminal Police Organization (INTERPOL) issued an international warrant for Taylor's arrest, but he continued to evade authorities for the next three years. During his disappearance, Taylor's counsel brought a motion to challenge the indictment based on sovereign immunity and extraterritoriality, which the Appeals Chamber of the Special Court dismissed on May 31, 2004. On March 29, 2006, Nigerian authorities apprehended Taylor and returned him to Monrovia upon orders from the newly-elected Liberian President, Ellen Johnson-Sirleaf. Taylor was then delivered into UN custody and transferred to Freetown, Sierra Leone to stand trial.

Taylor made his initial appearance at the Special Court on April 3, 2006, where he pled not-guilty to all charges. However, a UN Resolution determined that his presence in northwest Africa posed too great a threat to stability and peace in the region to continue the trial in Sierra Leone, and that no other African tribunal had the requisite space and security to host it. Thus, on June 30th, the Security Council ordered Taylor transferred to the International Criminal Court in the Hague, Netherlands. Despite the transfer of venue, the Special Court for Sierra Leone retains full jurisdiction over Taylor's case.

Nearly one year later, on June 4, 2007, Brenda Hollis (Principal Attorney) delivered the Prosecution's opening statement. Taylor then delayed the proceedings by dismissing his counsel and asking the judge for an adjournment until new counsel could be retained. The trial resumed in January 2008, and for the next year the Prosecution introduced the testimony of 91 witnesses, including amputees, rape victims, and former child soldiers, many of whom requested partial face or voice distortion and closed sessions to ensure their safety. The Prosecution rested its case on February 7, 2009. Taylor's attorneys next filed a Motion for Judgment of Acquittal, which asked the judge to rule for Taylor because the evidence presented was insufficient to support a conviction. Presiding Judge Richard Lussick dismissed the motion on May 4, 2009, and scheduled a status conference for July 6th in anticipation of the Defense's opening statement.

At the conference, both Prosecution and Defense raised issues ranging from the trial schedule to the Prosecution's request that Taylor be denied contact with Defense Witnesses. Defense Counsel Courtaney Griffiths said he planned to begin opening arguments on July 13, 2009, but asked to push Taylor's testimony back one day to July 14th. Justice Lussick agreed, but warned Griffiths that the opening statement must not reach beyond the scope of the presented evidence. The most contentious issue was the 256 people listed as potential witnesses for the Defense. Hollis pointed out that this number was three times more than those called by the Prosecution, and that if they were allowed to testify, the trial would continue for 94 more weeks (4 years). Hollis deemed this time frame unacceptable, and Griffiths asserted that not all persons listed would testify, noting that the Prosecution itself had listed 300 witnesses before calling only 91 to the stand. Hollis then requested a list of core and back-up witnesses, and an order from Justice Lussick stating that the Defense must revise and clarify the background summaries of many defense witnesses. This request for a formal order was rejected by the court as unnecessary. Hollis further asserted that the summaries of three layperson witnesses—one who will frame the war as an ethnic conflict, one who will testify to the cause of death of a victim, and one who will contest the statements of the Prosecution's expert witness—imply that they are in fact expert witnesses. Justice Lussick ruled that the Defense could proceed, but that the witnesses would be prohibited under the Rules of Evidence and Procedure if the testimony suggests they are experts.

Sentencing would follow roughly one month after the verdict, with the appeals process ending six months later. Under a January 2002 agreement between Sierra Leone and the UN, Taylor cannot be sentenced to life in prison; however, Britain has volunteered to imprison Taylor for the anticipated 50-year sentence if he is convicted. [1]

by Ally Basak Russell, International Justice Project Legal Intern Summer 2009

[1] The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996. See Special Court for Sierra Leone: Home, http://www.sc-sl.org/ (last visited July 7, 2009).

Accountability: It Could Happen to Yoo

Despite the U.S. government’s attempts to resist accountability for serious human rights abuses committed against terror suspects, a judge for the U.S. District Court for the Northern District of California ruled recently that John Yoo, a former lawyer for the Justice Department’s Office of Legal Counsel and author of the infamous “torture memos,” must testify in court about his role in designing the legal framework supporting such abuses. The court's ruling is a significant breakthrough for human rights organizations such as the World Organization for Human Rights USA, which have long advocated for accountability for detainee abuse.

The lawsuit, filed in January by Jose Padilla, a U.S. citizen currently serving a 17-year sentence on terrorism charges, alleges that Padilla was tortured while detained for nearly four years before he was charged by the U.S. government. In denying the government’s motion to dismiss the suit, Judge White, a Bush appointee, concluded that “government lawyers [like any other lawyers] are responsible for the foreseeable consequences of their conduct.” The order represents the first time that a U.S. government lawyer could be held potentially liable for the abuse of detainees.

In allowing the lawsuit to go forward, Judge White rejected the government’s argument that courts are precluded from reviewing top-level administrative decisions in wartime, or that allowing allegations of unconstitutional treatment could damage U.S. national security or foreign relations. Judge White ruled that Padilla may be able to prove that Yoo’s memos “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.” According to the judge, the treatment alleged by Padilla violates the Constitution, “and John Yoo should have known that.”

This major decision demonstrates the importance of the rule of law. If John Yoo, or the U.S. government, is ordered to pay damages for their role in Padilla’s mistreatment, this case stands to advance the U.S. government's compliance with international human rights norms, which require states to afford justice and reparation to victims of state-sponsored human rights abuse.

While a civil remedy is an important first step, however, justice demands criminal investigations into human rights abuses committed by or at the direction of U.S. government officials, as well as prosecutions, where warranted. This case brings the United States one step closer to upholding its responsibility to investigate and punish human rights abusers, and to afford justice and reparation to victims of such abuse.

-Ari Levin, Human Rights & Anti-Terrorism Legal Intern

Leading by Example: A Case for the International Criminal Court

In July 1998, world leaders convened to adopt the Rome Statute, the Treaty to create the first permanent International Criminal Court (ICC). The ICC would provide a forum to prosecute individuals responsible for the gravest violations of international law: genocide, crimes against humanity, and war crimes. When the final votes were tallied, the numbers reflected overwhelming international support -- 120 countries voted in favor of the Treaty, with just 7 in opposition. [1] The United States, along with China, Israel, Libya, Qatar, Yemen and Iraq, were the seven who voted “No.”

In the last eleven years, the United States has remained either staunchly opposed or profoundly skeptical of the ICC. This blog post takes a brief look at the United States government's apparently uneasy relationship with the ICC, followed by a discussion of three common misunderstandings of the nature of the Court. In short, the ICC allows individuals to assert their human rights against the power of the State, and the Court has had tremendous success in ending impunity for some of the 21st Century’s most serious abuses (click here for Chief Prosecutor Luis Moreno-Ocampo’s reflection). But even as other countries continue to ratify the Treaty (this week, Chile became the 109th State Party), the United States' resistance threatens both the legitimacy and effectiveness of the ICC. Unpacking the myths about the ICC reveals what membership to the Court really means for the United States, and why America’s support is so critical.

A History of Resistance

In the drafting stages of the Treaty, the US supported an arrangement under which the United Nations (UN) Security Council (of which the US is a permanent veto-holding member) would maintain control over the cases that the ICC pursued. Instead, the final form of the Treaty provides for an independent prosecutor and the UN Security Council has the ability to defer – not forego – an investigation. [2] However, the Treaty contains numerous mechanisms to guard against malicious prosecutions and other unwarranted investigations. Despite these safeguards, which are described in more detail below, the United States was unsatisfied with the final version of the Treaty. Thus, many were surprised when President Clinton signed the Treaty on the last possible day, December 31, 2000, in what is known as a midnight action.

The decision to sign demonstrated symbolic support, but, as Clinton simultaneously announced that he would not forward the Treaty to the Senate for ratification, his signing is remembered essentially as an empty political move. On April 11, 2002, the day that the Treaty reached the necessary sixty ratifications to enter into force, the Bush administration “unsigned” the United States, and thus removed any lingering indication of potential support. However, with President Obama indicating legitimate interest in the ICC, it is possible that the US government may be shifting its stance.

Susan E. Rice, U.S. Ambassador to the UN, noted in her first appearance before the UN Security Council that the ICC "looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda, and Darfur." Below we’ll discuss why an overt engagement by the United States in this “instrument of accountability” will only strengthen the global response to atrocities, and heighten respect for human rights around the world.

Myth #1 – If the US signed the Treaty, the ICC would prosecute Americans for politically-motivated reasons.

A chief public concern is that if the United States became a signatory to the Rome Statute, other countries would use the ICC as a tool to conduct politically-motivated investigations that would embarrass or undermine the authority of U.S. military and political officials. However, the Rome Statute has numerous safeguards to prevent frivolous or malicious prosecution.

First, before initiating an investigation, the Prosecutor needs the approval of a panel of impartial judges. These judges are nominated by State Parties to the ICC and elected by a 2/3 majority of the parties present (provided that an absolute majority of States Parties constitutes the quorum for voting) [3] and are chosen “from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.” [4] If judges or prosecutors do not live up to these high standards, the Rome Statute includes procedures for removal for abuse of authority or where impartiality is reasonably doubted. [5]

Second, the ICC can only investigate and prosecute cases of genocide, crimes against humanity and war crimes. Each of these three grounds for prosecution has very demanding standards (for example, genocide requires a specific intent to destroy a particular group, crimes against humanity must be “widespread” and “systematic,” and war crimes have very stringent contextual requirements). [6] The Office of the Prosecutor has received over 8137 communications since July 2002 from more than 130 countries, and yet has only proceeded with 4 investigations, dismissing the rest for failing to have “a reasonable basis to proceed.”

Finally, the UN Security Council – on which the United States plays a powerful role – has the ability to adopt a resolution that will defer a prosecution indefinitely. [7] The combination of these three factors informed the Chief Prosecutor’s decision not to move forward with an investigation of the highly political and controversial war in Iraq. The ICC would not have been able to prosecute U.S. or Iraqi officials, as those countries are not State Parties, but could have proceeded with an investigation of the UK, the United States' closest ally with a substantial presence in Iraq, and party to the ICC.

However, in response to the over 240 communications received regarding the situation, the Chief Prosecutor offered a thorough and reasoned analysis of why the case fell outside of the Court’s jurisdiction. (Read Chief Prosecutor Luis Moreno Ocampo’s letter here.) The ICC’s management of the situation in Iraq, one of the most contentious armed conflicts in the history of the Court, seems to speak directly the fear of wrongful prosecution. The decision taken by Prosecutor Ocampo reflects the efficacy of the safeguards within the Treaty, the respect of the Prosecutor for the rule of the law, and the substantial limits of the ICC’s authority.

Myth #2 – The ICC could bypass the American judicial system and haul our leaders and our soldiers off to the Netherlands.

Even if a case involving the United States did fall within the jurisdiction of the ICC – i.e., the US was a party to the ICC and the crime alleged was genocide, crime against humanity, or war crime -- the Court still does not have immediate authority to investigate and prosecute. It is important to remember that the ICC is a court of complementarity, or a court of last resort. That means that the ICC cannot consider prosecution until the State concerned has exhausted all of its judicial and legal resources.

Under the Rome Statute, in order for the ICC to act, the State’s national system must be unwilling or unable carry out its own genuine investigation and/or prosecution. [8] The threshold for ‘unwillingness’ and ‘inability’ is extremely high. To be ‘unable’ requires nothing less than massive disruption of a legal system (i.e., a natural disaster, debilitating civil war, or complete lack of unqualified or impartial judges). And to be ‘unwilling’ requires that a country take active steps to shield someone from responsibility for ICC crimes or otherwise obstruct justice. Making a good-faith decision not to prosecute does not mean that a country is unwilling to prosecute, and such a decision must be respected by the ICC. [9]

Myth #3 – There is nothing in it for the United States.

Given the unlikelihood of a case involving the United States - a stable democratic government with an established and well-respected judiciary - coming before the international tribunal, it may seem easy to dismiss the need for American participation in and support of the ICC. Some may question whether involvement in the ICC would be of any use to the United States. We must recognize that the United States' rejection of the Court has seriously weakened the ability of the international community to take an effective stand against the gravest of human rights abuses.

While the Court can function without the United States, the lack of backing (as a signatory or donor) undermines the credibility and sustainability of the institution, especially as rejection by the world’s hegemony discourages other states from both signing and financially supporting similar international judicial institutions. The Chief Prosecutor in the case against former Liberian President Charles Taylor for atrocities committed in West Africa, noted rightfully that, no matter how good his case, "if we run out of money, I lose." The United States, and indeed the world, cannot afford to release those accused of the gravest abuses of human rights due to failure to provide adequate resources to tribunals.

As the United States takes seemingly hypocritical stances on the ICC intervention in certain crises (for example, abstaining from (thus, arguably implicitly supporting) the UN Security Council vote to indict President Omar al-Bashir of Sudan), many have noted “[t]he United States wants to create a world of universal values, rules and institutions. But [they] can't abide the fact that they might apply to [them].” Though the United States continues to be viewed as a leader in the realms of law and justice, resistance to international standards projects a dangerous double standard. Joining the ICC is an opportunity for the United States to make an overt commitment to human rights – a move that will have an instrumental impact in the promotion and protection of human rights throughout the world.

-Nadia Ben-Youssef, International Justice Project Legal Intern

[1] Van Schaack & Slye, International Criminal Law and Its Enforcement (Foundation Press 2007)

[2] Rome Statute, Art. 16

[3] Rome Statute (Art. 112 (7)(a))

[4] Rome Statute (Art. 36(3)(a))

[5] Rome Statute (Arts. 41 and 42)

[6] Rome Statute (Art. 15)

[7] Rome Statute (Art. 16)

[8] Rome Statute (Art. 17)

[9] Rome State (Art. 17(1)(b))

Take Another Look at International Law: Why it is Good for the United States

Human rights discourse in the United States focuses primarily on enforcing human rights abroad. However, human rights concerns are not inherently extraterritorial. Rather, it is the responsibility of every government – including the United States – to guarantee the basic human rights of every person within its territory. One way to fulfill this global responsibility is by incorporating international human rights norms – which have been agreed upon by all developed nations – into domestic jurisprudence.

According to Harold Koh, former Dean of Yale Law School who was recently confirmed to serve as the State Department's top legal advisor, "[F]ederal judges have become an increasingly critical link between the international and the domestic legal spheres... [by helping] internalize international legal norms into U.S. domestic law through a range of interpretive techniques."

However, some Americans remain skeptical that judicial recourse to international law would undermine U.S. sovereignty and harm American citizens. While some criticize Koh for using "international and foreign law to deprive Americans of our rights as American citizens," a closer look at the use of international human rights law reveals that these criticisms are ill-conceived, and reveals that the use of international human rights law is GOOD for America and its citizens.

Argument 1: Courts might prioritize international law over U.S. law and undermine U.S. sovereignty.

First, skeptics of international law, like John Bolton, Former President George W. Bush's Ambassador to the United Nations, fear that U.S. courts might put international law above the Constitution and thus undermine U.S. sovereignty. However, proponents of using international law as a guide domestically do not argue that international law should take precedence over the Constitution. Rather, proponents believe U.S. courts should (as at times they already do) look to international human rights norms when interpreting and applying the Constitution. For example, when the U.S. Supreme Court abolished the juvenile death penalty in 2005, the Court noted that "[t]he United States is the only country in the world that continues to give official sanction to the juvenile penalty.

It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom."[1] Furthermore, the Supreme Court has explicitly instructed federal courts to exercise great restraint on those rare occasions when they are asked to directly apply international human rights law, so as to not undermine State, Congressional or Presidential power within the democratic process.

Skeptics who argue that enforcing international human rights norms in U.S. courts will undermine U.S. sovereignty also overlook the facts that: (1) the United States was founded on human rights ideology (the Declaration of Independence rests on the human rights principle that 'all men are created equal'), and (2) the United States played a lofty role in developing international human rights law by encouraging other nations to internalize human rights norms.

After World War II, the United States took a leading role in developing major human rights documents when Franklin Roosevelt inspired the drafting of the Universal Declaration of Human Rights (UDHR). First Lady Eleanor Roosevelt, who chaired the original United Nations Human Rights Commission, furthered the role of the United States on the international stage by overseeing the drafting of that crucial document. According to the scholar Louis Henkin, the human rights norms encompassed in the UDHR have become international legal norms that "are in their essence American Constitutional rights protected around the world."[2] Thus, there is no reason to fear allowing international human rights law to come full circle and fit back into the democratic American society from whence it emerged.

Argument 2: Upholding international human rights law in U.S. courts could hurt American citizens.

Second, skeptics argue that upholding international human rights law will hurt U.S. citizens by "handicap[ing] America's efforts to defend itself" and "harm[ing] American business." In reality, U.S. security and business interests demand reciprocity – if we expect humane treatment of U.S. citizens abroad, we should ensure such treatment of foreign nationals in the U.S. By condoning – either explicitly or implicitly - violations of international law, the United States undermines its ability to demand respectful treatment of U.S. citizens overseas.

For example, due to U.S. failure to thoroughly address allegations of human rights violations, Spain considered prosecution of former U.S. officials for torture. The ability of another country to charge U.S. officials is beyond the scope of this entry, suffice to say that had the the U.S. government not ignored international human rights norms as a general policy, U.S. citizens acting within that political framework would not have been in such an undesirable situation.

Along with protecting the interests of U.S. citizens abroad, domestically enforcing international human rights norms protects U.S. citizens from violations of human rights by their own government. Six years ago, The New York Times dubbed Jack L. Goldsmith, a former law professor at the University of Chicago, as "one of the brightest stars in the conservative legal firmament," and "a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts."

A mere nine months after becoming legal advisor to the Pentagon in 2003, however, Goldsmith resigned from the prestigious position and began to speak publicly on how the Bush Administration violated both domestic and international human rights law. According to Goldsmith, the former Administration's pre-emptive approach to the "War on Terror" was an attempt to expand the limits of presidential power and simultaneously immunize government officials from international human rights violations and war crimes.

Goldsmith's exposure to high-ranking intelligence regarding human rights violations led the renowned conservative opponent of international law to recognize that enforcing international human rights law in the United States is necessary to fill domestic legal gaps and loopholes the government might exploit to harm American citizens. For example, respect for international human rights law could have protected U.S. citizens from the discretionary use of wiretapping, ethnic profiling, illegal detention of suspected terrorists, and attempts to justify torture.

These are but a few of the reasons Americans ought not fear judicial recourse to international human rights law. Rather, we should embrace international human rights law to protect national and personal interests, and to demonstrate to the world that the U.S. remains a leader in fostering and promoting human rights for all world citizens.

-Annie Johnston, International Justice Project Legal Intern

[1] Roper v. Simmons, 543 U.S. 551, 554 (2005).

[2] Louis Henkin, How Nations Behave: Law and Foreign Policy, in Int'l Law 25, 24 (Barry E. Carter, Phillip R. Trimble, & Allen S. Weiner 5th ed., 2007).

Debunking Myths in the Torture Debate: Why Waterboarding Does More Harm than Good

The recent release of memoranda advising the President about interrogation techniques used at Guantanamo Bay, specifically waterboarding, has prompted much debate regarding the utility and morality of torture. Many argue that torture is unequivocally wrong. Others contend that, under certain circumstances, torture may be permissible or even recommended. This post reviews the laws that apply in the United States as well as the scientific studies regarding the use of torture so that our readers may take an informed stance. We explore two common myths surrounding torture such that it becomes clear: torture is never a valid option.

Myth #1: Certain types of conduct, including waterboarding, are not torture.

To understand whether torture is ever permissible, we must first clarify what is or is not torture. In the context of the debate over waterboarding of terrorist suspects, many argue that this technique is not torture because, in most cases, it does not cause permanent physical injury. International law offers a clear prohibition against torture, defined as:

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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, 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. [1]

This ban is contained not only within multiple international treaties, including the Geneva Conventions, but also customary international law as well as U.S. domestic law. [2]

Yet some commentators have attempted to delineate how much pain, suffering, or force must be inflicted before the “torture line” is crossed. Their creation of an artificial divide between torture and cruel, inhuman, and degrading treatment acts as a distraction from the real issue: whether torture is justifiable. For example, panelists on Fox News’ “The Strategy Room” unanimously concluded that the actions of a United Arab Emirates sheik, including electrocuting, whipping, and driving over a prisoner, constituted torture. Yet, in that same discussion, the panelists continued to refer to waterboarding as “splashing water on someone.” These divergent reactions are the result of the difference between reading about a set of interrogation procedures versus watching and hearing them be carried out. The difference might also be related to the identity of the person being tortured; some might change their opinions regarding the lawfulness of torture based on whether the person strapped to the board is an alleged Al Qaeda operative or a U.S. citizen.

The willingness of some journalists to undergo waterboarding provides an opportunity to better understand the procedure. Watching someone emerge, stuttering and panicked, from a brief waterboarding session raises more questions than merely reading about the procedure. This is especially true since these willing participants lack both the perspective of someone accused – whether correctly or incorrectly – of being a terrorist, as well as the agenda of some administration and military officials.

When waterboarding was applied in a controlled environment with less political charge to two different participants, both subjects easily and quickly conceded the procedure is torture. Conservative radio talk show host Eric “Mancow” Muller was so adamant that waterboarding was merely “uncomfortable” that he agreed to undergo the procedure during a live radio broadcast: “I wanted to prove it wasn’t torture.... they cut off our heads, we put water on their face.” After only a few seconds, he emerged gasping for air, then raised his head and said, though he hated to admit it, the procedure was “absolute torture.” Similarly, Vanity Fair columnist Christopher Hitchens subjected himself to waterboarding and later penned an entire article describing, in detail, how and why the procedure was torturous.

The objective accounts of Muller and Hitchens tend to debunk any skepticism as to the fact that waterboarding constitutes torture.

Myth #2: Torture is a Useful Tool in the War Against Terror

Another argument often put forth to support the use of torture is the “ticking time bomb scenario. Its proponents argue that torture may provide the only avenue by which certain life-saving information may be extracted from informants. Such proponents claim that waterboarding has “saved thousands of lives.” These declarations may be refuted by two separate lines of argumentation: (1) there is no evidence to prove that waterboarding is the only way to gain information and (2) even if waterboarding is the only way to gather information, there is no guarantee that the information will be truthful.

First, there is no control group or any reliable method comparison from which to draw the conclusion that torture is the sole method of gaining information. As Intelligence Director Admiral Dennis C. Blair has stated: "...there is no way of knowing whether the same information could have been obtained through other means..." These conclusions were buttressed by a New York Times op-ed piece by Ali Soufan, a former interrogator responsible for the interrogation of Abu Zubaydah. Like Blair, Soufan stated that “there was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.”

Second, even if torture provides the quickest and most efficient method of gaining intelligence, there is no guarantee that information gained is correct. Harsh interrogation techniques may have created an unbearable pressure on detainees to make statements, whether false or fabricated, in order to make the painful interrogations cease. One of the high-value detainees imprisoned at Guantanamo, Khaled Shaik Mohammed, provided misleading information to interrogators: “I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop.... I'm sure that the false information I was forced to invent...wasted a lot of their time and led to several false red-alerts being placed in the US.” Therefore, even if tortuous techniques were the only way to gain certain information, there is no guarantee that the information gained is true or would prove to be helpful to national security officials.

Sadly, it appears that the use of “enhanced interrogation techniques” may have lead not only to a wider escalation in violence, but to misinformation (and thus a likely misallocation) of U.S. military resources. These techniques have damaged the global reputation of the United States, and, according to Admiral Blair, “the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

-Jill Paul, International Justice Project Legal Intern

[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 39 U.N.T.S. 24841.

[2] See, e.g., War Crimes Act of 1996, 18 U.S.C. § 2441 (1996); Anti-Torture Statute, 18 U.S.C. § 2340; Torture Victim Protection Act, 28 U.S.C. § 1350 Note.

Treaty Ratification: Why Should the United States Ratify International Treaties?

Earlier this year, when Sen. Barbara Boxer (D-Cal) began urging the Obama administration to ratify a 20-year old international agreement creating a full range of human rights for children, it revived discussions about what role the promotion of human rights should play in U.S. foreign policy. The answer is simple: as the world’s lone superpower, the U.S. has the rare and important ability to influence the behaviors of governments and people around the globe.

Although the U.S. has played a key role in establishing global human rights standards – the UN Declaration on Human Rights (UDHR) was inspired in part by Franklin D. Roosevelt’s Four Freedoms speech, and partially drafted by his wife, Eleanor [1] – the country’s credibility has been compromised because of its role in recent human rights violations. With this year marking the 60th Anniversary of the UDHR, and it being the first time the U.S. has held a seat on the UN Human Rights Council, the timing couldn’t be better for the U.S. to reaffirm its commitment to universal human rights by ratifying international treaties. [2] To date, the U.S. has failed to ratify several fundamental international agreements intended to protect human rights, including the Convention on the Elimination of All Forms of Discrimination against Women (commonly known as “CEDAW”) and the Rome Statute of the International Criminal Court.

The Convention on the Rights of the Child, which provides a global framework for the protection of children by vesting them with specific civil, social, cultural, political, and economic rights, is yet another example of a human rights agreement the U.S. has failed to ratify. Although the Treaty was signed by the Clinton administration in 1995, it has not yet been ratified – an important distinction as “signing” treaties is akin to a symbolic gesture, while “ratification” gives teeth to the agreement by creating legal obligations. Despite publicly stating its intention to ratify, the U.S. still stands with Somalia as one of the only two countries to not ratify the Treaty, while worldwide atrocities against children – including enslavement, torture, abuse, and abduction – continue daily.


While some believe that, under the Supremacy Clause, the Treaty would trump all federal laws and undermine parental authority and influence over a child’s development, in actuality, the Treaty would not override the Constitution. For one, U.S. ratifications of international treaties are often made with explanations or caveats (in what are called Reservations, Understandings, and Declarations or “RUDs”) to acceptance. If the U.S. agrees with the general principle of the Treaty, but is troubled by a certain provision, it may clarify or modify those areas of the Treaty before ratification. Furthermore, the Treaty is not self-executing – it cannot be “automatically implemented without legislative action,” giving Congress another opportunity to clarify what the Treaty will and will not mean for U.S. law.

Regarding parental rights, the CRC clearly recognizes the principle that parents “have the primary responsibility for the upbringing and development of the child,” and that parties to the Treaty are merely rendering “appropriate assistance” to parents performing their child-rearing responsibilities. In other words, ratifying the Treaty will not give the UN authority to control U.S. policies on children and there is no language in the CRC dictating how American parents are to raise their children. In fact, the CRC frequently emphasizes the vital role that parents play and recognizes the importance of a loving family atmosphere for the proper upbringing of a child.
Some opponents to ratification purport that, under the Treaty, parents will no longer be able to spank their kids.

To those who understand the language of the Treaty and the realities of its implementation, this argument is easily dismissed. At no point does the text of the Treaty refer to spanking or corporal punishment of children. What it does prohibit, is “cruel, inhuman or degrading treatment or punishment.” It also protects children from physical and mental violence, injury and abuse, neglect, and maltreatment or exploitation. Each country may interpret the Treaty as it so chooses, and many have defined such violence as beatings so severe that they leave visible marks on the body.

Overseas, the implementation of laws in furtherance of the Treaty has been largely successful. Recent reports from many of the 193 countries that have ratified the Treaty indicate that much progress is being made as a result. In countries such as Oman, Niger, Romania, and Bangladesh, governments have implemented laws forbidding children in armed conflicts, combating child poverty, and improving the health and well-being of children. The results have varied, from decreases in infant mortality rates to significant progress in the area of education.

Contrary to claims that U.S. children already enjoy the rights set forth in the Treaty, many American kids still live in poverty, and nearly a million children suffer from child abuse or neglect each year. Though the U.S. may not face all of the challenges seen in other countries, ratifying the Treaty will lend support to those countries and encourage the addressing of challenges we do still face.

In light of these considerations, it is not difficult to see why the U.S. should ratify the CRC. Not only will ratification boost U.S. credibility overseas, but it will demonstrate our commitment to ensuring the basic rights and freedoms to which all humans are entitled, worldwide. Global leadership, after all, is a privilege that we must not take for granted.

-Jacy Youn, International Justice Project Legal Intern

[1] Catherine Powell, Human Rights at Home: A Domestic Policy Blueprint for the New Administration, American Constitution Society for Law and Policy, Oct. 2008, available at http://www.acslaw.org/files/C%20Powell%20Blueprint.pdf
[2] Statement of Congressman John Lewis (GA), On the Reintroduction of Recommitment to International Human and Civil Rights Resolution, May 7, 2009