JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that the "compromise" between senior Republican lawmakers and the White House on the terms of military commission legislation governing detainee interrogation and trial provides US interrogators with inadequate guidance and leaves them - and their would-be protectors - legally unsafe...
It was pointed out in a previous JURIST Forum essay that Justice Stevens, writing the opinion of the Supreme Court in Hamdan v. Rumsfeld (2006), warned that "at least one provision of the Geneva Conventions ... applies" to the Administration's detainees: common Article 3. In his concurring opinion in Hamdan, Justice Kennedy emphasized that "[t]he Court is correct to concentrate on one provision of the law of war that is applicable ... Common Article 3." He 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 (such as those expressly set forth or incorporated by reference in common Article 3) 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 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 in this regard. 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.
What specific forms of treatment does common Article 3 guarantee and prohibit? First, the article requires that all detainees "shall in all circumstances be treated humanely," not merely whenever the U.S. Executive prefers to do so and not merely whenever domestic U.S. constitutional amendments or criminal laws against "torture" happen to coincide with some common Article 3 standards. Second, the article prohibits, "at any time and in any place whatsoever," "torture," "mutilation," "cruel treatment," "outrages upon personal dignity," "humiliating" treatment, and "degrading" treatment. A core of generally agreed meaning and definitional factors operate in various judicial fora for imposition of criminal and civil responsibility with respect to each term or phrase despite the possibility of a lack of generally agreed meaning at the extreme outer edges of theoretically possible meanings a circumstance well-known to lawyers and judges who interpret words such as "due process," "free speech," and the like in constitutions, statutes, private contracts, and other instruments.
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.
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." As documented in my article Executive Plans and Authorizations, other international courts and tribunals have provided guidance concerning the meaning and definitional factors with respect to cruel, inhuman, and degrading treatment (id. at 845-46), and so have several U.S. courts (id. at 821-22 n.40). 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." The five "techniques were also degrading, since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance." Another European decision in 1999 expressly reaffirmed the recognition that treatment is degrading if it is "such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them."
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 (which recognized that the putative U.S. reservation to the Convention Against Torture (CAT) attempting to limit U.S. obligations under the CAT to merely those operative under three U.S. constitutional amendments is inconsistent with the object and purpose of the treaty and void as a matter of law) 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.
Language in the Republican compromise fails to reflect the international legal standards recognized in international and U.S. domestic courts and tribunals. 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. Thus, U.S. interrogators are needlessly placed in harms way if they merely follow the standards in the draft.
In particular, contrary to international precedent, the draft attempts to add limiting words such as "intended to inflict," "severe," and "serious" to a definition of cruel or inhuman treatment. Instead of a prohibition of "mutilation," the draft seeks to limit one form of mutilation to "permanently disabling." The draft also attempts to limit "serious physical pain or suffering" by excluding "cuts, abrasions, or bruises" not amounting to "a burn or physical disfigurement" and excluding serious pain or suffering not involving "significant loss or impairment of the function of a bodily member, organ, or mental faculty," or "extreme" physical pain, or "a substantial risk of death." Thus, the draft does not cover all forms of serious injury to body or health, mutilation, and cruel treatment. There is no attention in the draft to Geneva prohibitions of "humiliating" treatment and there is only one portion of the draft that addresses "degrading" treatment and it does so in a manner that also fails to provide adequate legal guidance to U.S. interrogators, since it attempts to limit its coverage of "cruel, inhuman, or degrading treatment" to merely that prohibited by three domestic U.S. constitutional amendments. As noted, the Committee on Torture has rejected such an attempt. Moreover, there is no such attempted reservation to the Geneva Conventions and, if there had been, such a putative reservation would also be void ab initio as a matter of law. Constitutional amendments simply do not cover all cruel, inhuman, degrading, and humiliating treatment proscribed under the laws of war and human rights law. Moreover, constitutional amendments do not even reach all private perpetrators, whereas the laws of war and human rights law can reach private perpetrators (as affirmed in several U.S. cases). Using a void putative amendment to one treaty in an attempt to limit the reach of several others would be outrageous and would not provide adequate guidance to those involved in interrogation.
For several reasons, Senator McCain is correct that this is not about al Qaeda, this is about America.
Jordan J. Paust is Mike & Teresa Law Center Professor at the University of Houston and a former U.S. Army CPT, JAGC and member of the faculty of the JAG School (1969-1973). One of his writings addressing the impropriety of procedures of the Bush military commission was cited by the Supreme Court in Hamdan.