UN Official: US Obligated to Prosecute Torture

So it begins.

“Judicially speaking, the United States has a clear obligation” to bring proceedings against Bush and Rumsfeld, the United Nations Special Rapporteur on Torture Manfred Nowak said, in remarks to be broadcast on Germany’s ZDF television Tuesday evening.

He noted Washington had ratified the UN convention on torture which required “all means, particularly penal law” to be used to bring proceedings against those violating it.

“We have all these documents that are now publicly available that prove that these methods of interrogation were intentionally ordered by Rumsfeld,” against detainees at the US prison facility in Guantanamo Bay, Cuba, Nowak said.

War crimes have ‘universal jurisidiction’, meaning that any country may bring charges against suspected war criminals. This was the theory underwhich Augusto Pinochet was arrested in 1998 in London on charges in a Spanish court. One of the charges was for the use of torture. If America does not prosecute, or at the very least, publicly investigate potential war criminals in its midst, then eventually another country will. Most importantly, it will undermine America’s standing as a model for the rule of law; a crowning glorious collapse of the remains of America’s international prestige.

As an aside, human rights groups and the Arab League are calling for an investigation by the International Criminal Court into suspected war crimes committed by Israel in the recent fighting in Gaza, particularly the use of white phosphorus in civilian areas. See stories here and here. While it is unlikely that the ICC would find it has jurisdiction, it may still have interesting implications for the United States on the torture front. Of course, there is also the issue of Security Council Resolution 1422 that granted immunity to non-States Parties in UN authorized missions between 2002 and 2004, which makes prosecution by the ICC even less likely.

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6 CommentsLeave a comment

  1. That’s nice. I guess it’s a shame for the UN that America only ratified their document of torture after adding in enough caveats to our signature so that we weren’t actually bound by it in any meaningful way.

    The US has maintained its sovereignty and will most likely not apply foreign law to US citizens within our borders.

    • I wouldn’t call international law ‘foreign’ – American treaty obligations are given the same legal weight as the constitution, under the constitution. More importantly, we have domestic torture statutes that were enacted to comply with the conditions of the various treaties. We don’t need to rest on international law.

      Equally, I’m not certain what if any weight a foreign court would give to US reservations to internation treaties governing torture.

  2. We signed those treaties with posted reservations. What that means is that US has only agreed to adhere to parts of those treaties, and the parts that allow for foreigners having any jurisdiction in America were specifically refused.

    More specifically, the US didn’t agree to the UN’s definition of torture and was only willing to abide by such definitions as were violations of our 1st, 4th, 8th, and I think 14th Amendments.

    As for our domestic “torture laws,” they’re so vague – and paradoxically so specific – as to be useless for prosecution – and they were modified to make much of what we’ve been doing legal. ;)

    An example: It is illegal to use torture as a punishment. It is not technically illegal to use torture for interrogation, but the evidence is not admissible in a normal court of law.

    • I’m not sure any such reservations would have much impact on a prosecution conducted under, say, Spanish law.

  3. Nor would Spanish law have much of any impact on an American who wasn’t is Spain. The US does not – as a general rule – extradite people to face charges in foreign courts unless the foreign charges have equivalents under US law – at least not when the supposed crimes didn’t take place on Spanish soil.

  4. Obviously. My point was rather that former Bush officials who leave the country would be at risk. While Bush himself might be willing to spend the rest of his life in Texas, I do not believe that will be true for everyone in his administration.

    Equally, I’m in no way certain that foreign prosecutions will happen; I just think that it is possible that they will. I also believe that that possibility will grow over time.


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