Republican Detainee Treatment Compromise – Does It Have a Chance Against International Law?

On September 22, Professor Jordan Paust of the University of Houston Law Center provided the guest column for JURIST: “Unsafe Harbor: The GOP ‘Compromise’ on Detainee Treatment”

Professor Paust teaches the following courses:

• U.S. Constitution and Foreign Affairs
• International Criminal Law
• International Human Rights
• International Law
• Jurisprudence
• Use of Force and Terrorism

According to Professor Paust, and despite the “compromise” between the moderate senators and the authoritarian Republican Executive, there is a possibility of placing “the United States in violation of common Article 3 and other provisions of the 1949 Geneva Conventions …, not to mention similar provisions in several other international treaties and instruments and customary international law. Those who would authorize, abet, or implement the “compromise” language in violation of common Article 3 … would be subject to criminal and civil sanctions outside the United States in any foreign forum and in certain international courts. No Act of Congress would change this result.”

Professor Paust references specific legal rulings on why this could happen:

He [Supreme Court Justice Kennedy on the Hamdan v. Rumsfeld case] then noted that common Article 3 “is part of a treaty the United States has ratified and thus accepted as binding law.” As noted also, every violation of the law of war is a war crime, punishable here or abroad in any country and in international fora presently operative or created in the future under the principle of universal jurisdiction. A denial of the rights and protections under the Geneva Conventions … is a violation of the Conventions and a violation of the Conventions is a war crime. Certain violations of Geneva law are not merely war crimes but are also “grave breaches.” These include “torture,” “inhuman treatment,” and “wilfully[sic] causing great suffering or serious injury to body or health.”

Another provision of treaty-based laws of war that also reflects customary international law is quite relevant …. It is set forth in Article 23(h) of the Annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, which reads: “it is especially forbidden … [t]o declare abolished, suspended, or inadmissible in a court of law the rights … of the nationals of the hostile party.” Similarly, as part of the law of war, a violation of the Hague Convention is a war crime and acceptance of the Republican compromisers’ draft would do just that.

Addressing Article 4 of the Statute of the International Criminal Tribunal for Rwanda (ICTR), which incorporates all violations of common Article 3 and lists several of its proscriptions (including torture, mutilation, outrages upon personal dignity, humiliating treatment, degrading treatment, rape, and any form of indecent assault), the Trial Chamber in The Prosecutor v. Musema (2000) ruled that the list “is taken from Common Article 3 of the Geneva Conventions and of Additional Protocol II” and “comprises serious violations of the fundamental humanitarian guarantees which … are recognised as customary international law” (emphasis added). Thus, if Congress wishes to focus on “serious” violations, all of those listed in common Article 3 are among them.

Professor Paust then cites additional legal definitions of serious violations:

More particularly, the Trial Chamber ruled that humiliating and degrading treatment includes “[s]ubjecting victims to treatment designed to subvert their self-regard,” adding: “motives required for torture would not be required.” “Indecent assault,” the court affirmed, involved “the infliction of pain or injury by an act which was of a sexual nature and inflicted by means of coercion, force, threat or intimidation and was non-consensual.” … For example, while addressing five British interrogation tactics used in the 1970s (wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink), the European Court of Human Rights affirmed that inhuman treatment occurred with respect to a combination of some of the tactics that “caused, if not bodily injury, at least intense physical and mental suffering.” …

A U.S. court has also recognized that “cruel, inhuman, or degrading treatment includes acts which inflict mental or physical suffering, anguish, humiliation, fear and debasement” and that being “forced to observe the suffering of friends and neighbors … [is] another form of inhumane and degrading treatment.” As documented in my article, the Committee Against Torture … affirmed that seven interrogation tactics are either torture or cruel, inhuman or degrading treatment criminally proscribed by the Convention: (1) restraining in very painful conditions, (2) hooding under special conditions, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill.

In closing, Professor Paust points out the failures of the Republican compromise:

First, several definitions in the draft are limited to others that are found in prior legislation, even though the Committee on Torture noted that prior U.S. legislation is inadequate and, thus, this scheme will not protect U.S. interrogators.

Second, contrary to some of the standards noted above, some of the definitions in the draft are far too limiting and, thus, do not adequately warn U.S. interrogators regarding what the actual international legal standards are.

Third, the draft attempts to abet this problem by requiring that “[n]o foreign or international sources of law shall supply a basis for a rule of decision … in interpreting the prohibitions enumerated” in the draft.