US and International Law on Torture: Detainee Rights

Introduction: The Absolute Prohibition on Torture

International and US law expressly forbids torture and other forms of ill-treatment of any person in custody, in all circumstances (Human Rights Watch 2004). This prohibition applies within United States territory and anywhere else the United States exercises control. It is operational in times of peace as well as during armed conflict or a state of emergency. It protects any person — whether a citizen or a non-citizen, a prisoner of war, a "protected person," a "security detainee," or an "unlawful combatant." The law against torture and ill-treatment is therefore absolute, as set forth by International Humanitarian Law and the Geneva Conventions, the Human Rights Law, and US law itself. These are international obligations that bind United States officials, military personnel, and others involved in the torture and mistreatment of persons in US military and intelligence detention facilities (Human Rights Watch 2004).

The First Geneva Convention of 1864 addressed the amelioration of the condition of the wounded and sick in the Armed Forces in the Field (Human Rights Watch 2004). The Second Geneva Convention of 1906 addressed the amelioration of the wounded, sick, and shipwrecked members of the Armed Forces at sea. The Third Geneva Convention of 1929 relates to the treatment of prisoners of war. These first three conventions were revised and expanded in 1949. The Fourth Geneva Convention of 1949 addressed the protection of civilian persons in time of war. All four subsequently came to be referred to as the Geneva Conventions of 1949, or simply the "Geneva Conventions." Modifications were later made through three amendment protocols. The first, in 1977, relates to the protection of victims of international armed conflicts. The second, also in 1977, relates to the protection of victims of non-international armed conflicts. The third, in 2005, relates to the adoption of an additional distinctive emblem for medical services. The United States ratified all four conventions in 1955 (Human Rights Watch 2004).

International Humanitarian Law and the Geneva Conventions

Geneva III Article 13 and Geneva IV Article 27 mandate that detainees must at all times be humanely treated (Human Rights Watch 2004). They allow interrogation but forbid all forms of physical or mental coercion. Rape or any indecent assault on women, torture, or inhuman treatment of prisoners of war and protected persons are serious breaches of the Conventions and are considered war crimes. War crimes obligate the State to prosecute the suspect or to extradite him to another State for prosecution. This obligation remains regardless of the suspect's nationality, the victim's nationality, or the place where the inhuman treatment is committed. Common Article 3 of the Conventions forbids violence and murder of all kinds and expresses prohibition of humiliating and degrading treatment. The fundamental guarantees of Article 75 of Protocol I of 1977 extend protection to detainees from third countries, forbidding murder, torture of all kinds, corporal punishment, outrages upon personal dignity, and any form of indecent assault (Human Rights Watch 2004).

Article 49 protects civilians during war (Goldsmith 2004). It forbids individual and mass forcible transfers and deportations of protected persons from occupied territory to that of the occupying power, regardless of motive. However, the Occupying Power may conduct total or partial evacuation if the security of the population or military necessity demands it. Protected persons shall not be displaced outside the occupied territory unless material reasons compel it, and they shall be returned home as soon as hostilities in the area cease. The Occupying Power is required to ensure proper accommodation and conditions conducive to the health, safety, and nutrition of those transferred, and family members shall not be separated. Transfers and evacuations must be promptly reported to the Protecting Power. The Occupying Power shall not detain protected persons in places where they may be exposed to the perils of war unless warranted by the security of the population or by justifiable military necessity. Furthermore, the Occupying Power shall not move parts of its own civilian population into the territory it occupies (Goldsmith 2004).

The prohibition on torture covers the mistreatment of persons in custody in all circumstances, during war or peacetime (Human Rights Watch 2004). Among the applicable treaties are the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Universal Declaration of Human Rights, and the UN Standard Minimum Rules for the Treatment of Prisoners. This prohibition has also become a fundamental principle of international law as a "peremptory norm." As a peremptory norm, it preempts all other customary laws. All states are bound to recognize and respect it whether or not they are signatories to treaties that contain it. Moreover, they are obligated to prevent and punish acts of torture even if they have not entered into treaties that specifically require it (Human Rights Watch 2004).

The United States incorporated international prohibitions against torture into its own domestic law (Human Rights Watch 2004). It agreed and reported to the Committee against Torture that torture, as understood by the Convention, is illegal under existing federal and state law, and that anyone proven to have committed it shall be penalized according to criminal statutes. Torture cannot be justified by so-called "exceptional circumstances" or by orders from a superior officer. Military personnel who torture or mistreat prisoners may therefore be prosecuted by court-martial under the Uniform Code of Military Justice. Under the War Crimes Act of 1996 (18 U.S.C. § 2441), US military personnel and nationals who commit these crimes can be held criminally liable under the 1949 Geneva Conventions. These war crimes include violations of Common Article 3 of the Conventions, which span all "violence to life and person," specifically addressing murder of all kinds, mutilation, cruel treatment, and torture.

A 1994 federal statute (18 U.S.C. § 2340A) prosecutes and penalizes a US national — or anyone while in the United States — who commits or attempts to commit torture. The violator may be punished with imprisonment of up to 20 years, or with the death penalty if the victim dies as a result of the torture. The Military Extraterritorial Jurisdiction Act of 2000 (Public Law 106-776), also known as MEJA, punishes civilian companions or employees of US forces who commit the same offense with imprisonment. The crimes covered generally include all federal criminal offenses punishable by imprisonment for more than one year. This last law, however, had yet to be tested pending the Defense Department's issuance of required implementing regulations. Torture, for these purposes, refers to the infliction of severe physical or mental pain or suffering by law enforcement officers on a person in custody or physical control; pain and suffering resulting from lawful sanctions are excluded (Human Rights Watch 2004).

Human Rights Law and US Domestic Law Against Torture

Article 5 of the 1948 Universal Declaration of Human Rights and other international and regional human rights treaties prohibit torture (Foley 2009). Most countries have entered into treaties that prohibit torture and other forms of mistreatment. Among these are the 1966 International Covenant on Civil and Political Rights, the 1950 European Convention on Human Rights, the 1978 American Convention on Human Rights, and the 1981 African Charter on Human and Peoples' Rights. Treaties addressing the combating of torture in particular include the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; and the 1985 Inter-American Convention to Prevent and Punish Torture. Their common prohibition of torture and ill-treatment derives from its status as a peremptory norm in human rights law — nothing can set aside or limit this restriction. States may not place individuals at risk of torture or ill-treatment, such as through extremely prolonged incommunicado detention or by depriving a detainee of prompt access to a court. Whatever the status of the suspect, this prohibition operates absolutely (Foley 2009).

These agreements constrain state officials from applying or tolerating torture or other inhuman treatment on any person (Foley 2009). An order from a superior may not justify torture. States must ensure that all acts of torture are treated as criminal offenses, that they are investigated, and that perpetrators are held accountable. The torture or other ill-treatment of any person under the power of another country or party is banned as a war crime under the humanitarian laws of armed conflict. Common Article 3 of the Geneva Conventions and other provisions of all four Conventions and their protocols convey this prohibition. Torture is likewise considered a crime against humanity when performed as part of a strategy against civilians. Article 7 of the Rome Statute of the International Criminal Court places torture and rape within its jurisdiction (Foley 2009).

From its adoption in 1984, the UN Convention against Torture had 130 state parties by August 2002 (Foley 2009). State parties are required to exercise universal jurisdiction, whereby they take suspected perpetrators of torture into custody, inquire into the allegations, and submit suspects to the prosecuting authority. States must also cooperate with one another in bringing torturers to justice. Statements obtained through torture may not be used as evidence against the victim, who retains the right to redress and adequate compensation. States are further obligated to take effective steps to combat torture, including educating law enforcement officers, medical personnel, and all others involved in the custody, interrogation, or treatment of detainees about the prohibition of torture and ill-treatment. They must actively investigate acts of torture and ill-treatment even in the absence of formal complaints, and individuals must be informed of their right to complain and to demand investigation and protection from intimidation. Other cruel, inhuman, or degrading acts or treatment or punishment fall within the purview of these prohibitions even if they do not rise to the level of torture (Foley 2009).

This Act was a consequence of the US Supreme Court's June 2006 decision in Hamdan v. Rumsfeld, which ruled against the creation of military commissions by executive fiat (Center for Constitutional Rights 2006). The Court held that the protection extended by Common Article 3 of the Geneva Conventions applies in the case of Al Qaeda. Apprehensions about potential liability for CIA interrogators for violating the Detainee Treatment Act — which prohibits torture and coercive interrogations — were also believed to have prompted the creation of this Act. It was passed by both the House and the Senate; five proposed amendments to eliminate the Act's jurisdiction-stripping provision failed. President George W. Bush signed the Act into law on October 17, 2006 (Center for Constitutional Rights 2006).

This legislation, S. 3930, authorizes the President to organize military commissions to try alien unlawful enemy combatants (US Congress 2006). It also authorizes the Secretary of Defense to convene the commissions and, together with the Attorney General, to establish rules and procedures for the commissions. It likewise revises the War Crimes Act and amends the habeas corpus provisions of the United States Code (US Congress 2006).