As David Luban noted yesterday evening, Charlie Savage of The New York Times reported that the Obama Administration likely plans to continue to espouse Bush-era positions on the prohibition against torture and the extraterritoriality of U.S. obligations under the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). The United States is slated to appear before the ten-person U.N. Committee Against Torture, the experts’ body charged with evaluating countries’ compliance with the treaty. The proceedings will take place in November 2014 during the Committee’s 53rd session. As I’ve discussed in the past, the extraterritoriality issue arose recently in connection with the United States’ appearance before the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee urged the United States to adjust itsviews to bring them more in line with the treaty’s text, authoritative judicial and other pronouncements, and the near-uniform interpretation of other signatories. Although in its submission to the HRC the United States took note of the fact that its stance is increasingly out of step with current law, it ultimately did not offer a change of position.
This issue has taken on new salience given that President Obama, back in August 2014 and in connection with debates on the declassification and release of the Report on interrogations currently in the hands of the Senate Intelligence Committee, has admitted that the United States engaged in torture. For the reasons I’ve outlined in a prior post, the United States should use this opportunity before the CAT Committee to relinquish an increasingly untenable and ultimately pointless position. Having the courage to make a strategic concession on extraterritoriality would do much to bring to a close a historical chapter marred by allegations that the United States in the past endeavored to create—and exploit—rights-free zones. It would also signal that the Obama Administration is willing to accept international human rights obligations regarding the treatment of individuals abroad that mirror those that have already been imposed upon it by the federal courts and Congress.
The Text of the Torture Convention
Unlike the ICCPR whose Article 2 governs the entire treaty, the Convention Against Torture contains multiple formulations of its geographic scope of application. Most of these formulations—and the treaty’s travaux préparatoires—are not open to debate and do not raise any of the ambiguities occasioned by the ICCPR and its drafting history. Article 2 of that treaty extends state party obligations to “all individuals within [the state’s] territory and subject to its jurisdiction,” which the United States has argued means that only those individuals in both the state’s territory and its jurisdiction benefit from the treaty’s protections. The Human Rights Committee, other ICCPR signatories, and the International Court of Justice consider these two criteria to be disjunctive, notwithstanding the “and.”
Some CAT provisions apply worldwide or contain no geographic limitation. For example, according to Article 7, states parties are obliged to prosecute acts of torture, regardless of where they are committed, when the perpetrator is found in their territory. The United States has codified this obligation in 18 U.S.C. § 2340, which extends universal jurisdiction over the crime of torture when committed “outside the United States” so long as the suspect is “present in” the United States. (Indeed, the CAT Committee has consistently criticized the United States for not specifically penalizing domestic torture). Other such treaty provisions include: Article 1’s definition of torture; Article 2(2), which makes clear that no exceptional circumstances whatsoever may be invoked as a justification for torture; Article 8, which obliges parties to make acts of torture extraditable offenses; Article 10 on the training of personnel; and Article 15’s exclusionary rule.
Other CAT provisions extend to “territory” under a state party’s “jurisdiction”. For example, states have a duty to
take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
According to Article 13, they are to
ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities (emphasis added).
A similar formulation creates obligations regarding interrogation rules (Article 11) and ensuring an effective investigation (Article 12). In addition, the prohibition against cruel, inhuman and degrading treatment or punishment (CIDT) contained in Article 16 applies in any territory under the state party’s jurisdiction:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
This CAT language indicates that these particular provisions apply outside a state party’s sovereign territory to events and actors within the state party’s “jurisdiction,” where presumably the state exercises sufficient control in order to fulfil these obligations. One provision that is silent as to geographic scope arises is Article 3 of the CAT, which articulates the prohibition on non-refoulement. Article 3 states:
No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
This provision does not state that it applies extraterritorially—i.e., to individuals who may be detained abroad and from there transferred to a third state. Authoritative interpretations, however, have indicated that non-refoulement obligations apply whenever the individual concerned is within the “effective control” of the state party, even if that control is exercised extraterritorially.
United States RUDs
When the United States ratified the Torture Convention in 1994, it did so subject to a number of reservations, understandings and declarations (RUDs). Two of these relate to the treaty’s geographic application. For one, the United States indicated its understanding that Article 14’s obligation to provide redress to victims only relates to acts of torture committed within territory under the United States’ jurisdiction, mimicking the formulation employed elsewhere in the treaty. The understanding states:
[I]t is the understanding of the United States that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.
Yet, Article 14 is silent as to its geographic reach. It reads:
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.
Notwithstanding this reservation, it should be noted that the United States in 1991 enacted the Torture Victim Protection Act, which in fact provides for a cause of action for torture committed under color of law of any foreign nation.
A reservation states that
the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
This reservation clearly relates to substance, limiting the prohibition on CIDT to that conduct that would also be unconstitutional under the listed provisions. However, because those amendments have largely been determined not to apply extraterritorially, this reservation could also purport to limit the reach of Article 16 of the Torture Convention when it comes to extraterritorial conduct.
There is no RUD addressed to Article 3’s non-refoulement prohibition.
U.S. Reporting Under the Convention Against Torture
The United States’ most recent report—which encompassed its third, fourth and fifth periodic reports because the United States was in arrears—was filed in December 2013. (The initial periodic report, filed in 2000, does not engage with the extraterritoriality issue in any great depth; the second periodic report, filed in 2005, is—not surprisingly—all about U.S. detention practices; all submissions and statements are available here). In its 2010 List of Issues conveyed prior to the Submission of the United States’ 5th Periodic Report, the CAT Committee specifically asked the United States to provide clarification on the treaty’s scope of application, including the applicability of the prohibition on non-refoulement to persons held outside its territory. In particular the Committee conveyed the following request for clarification:
48. Please clarify the State party’s position with regard to the interpretation of “territory under the State party’s jurisdiction”. Does the State party apply the provisions of the Convention which have been named as applicable to “territory under the State party’s jurisdiction” to all persons under the effective control of its authorities, of whichever type, wherever located in the world?
The United States’ 5th Periodic Report indicated that it “does not address the geographic scope of the Convention as a legal matter, although it does respond to related questions from the Committee in factual terms.” (para. 6). The Report notes that following the passage of the Detainee Treatment Act of 2005, every U.S. official, wherever he or she may be, is prohibited from engaging in acts that constitute torture or CIDT. (See, e.g., paras. 36, 39, 110, 116, 258). With respect ot the non-refoulement provision, although the Report also indicates that it is United States policy not to transfer any person to a country where it is more likely than not that the person will be tortured or has a well-founded fear of persecution, the United States did not concede the extraterritorial application of Article 3 of the CAT (para. 66) or—for that matter—any human rights treaty obligations. In prior submissions to the CAT Committee and in other fora, the United States has argued that the non-refoulement principle does not apply extraterritorially, whether by way of Article 3 of the CAT or its incarnation in Article 33 of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. Interpreting the latter treaty, the Supreme Court controversially affirmed the United States’ position in Sale v. Haitian Centers Council (1993) in connection with the practice of the United States of interdicting Haitian refugees on the high seas and returning them to Haiti.
The State Department Legal Adviser Office Memoranda
Our readers will recall that back in March 2014, and on the eve of the United States appearing before the Human Rights Committee, Charlie Savage made available two apparently leaked legal memoranda produced by the Department of States Legal Adviser Harold H. Koh and his staff on the extraterritoriality of human rights obligations. Much of the 2010 CAT memo addresses the overlap of international human rights and international humanitarian law, a topic we have discussed at length elsewhere. The remainder of the CAT memo sets out the State Department’s interpretation of the geographic reach of the treaty in four succinct points:
- The CAT codified a geographically-comprehensive prohibition against torture that already found expression in customary international law.
- The CAT obliges parties to criminalize all acts of torture, regardless of where they occur.
- The CAT extends certain obligations to “any territory” under the state’s “jurisdiction,” which means any context in which the “state exercises sufficient effective control to be able to exercise the relevant legal or regulatory authority,” including situations of de facto effective control, such as a state of occupation.
- The United States’ prior position that Article 3’s non-refoulement obligation applies only to sovereign U.S. territory is “legally unsustainable and unsupported by the object and purpose, text, context, and negotiating history of the Convention.” Thus, “it is not legally available to policymakers to claim … a categorical bar against the Convention’s extraterritorial scope.”
As the memo notes, these positions are “fully consistent with current U.S. practices and policy.” As such, acknowledging these obligations as legal—as well as policy—commitments would not involve any change to U.S. practice. The memo concluded:
A perception that the United States is continuing to preserve its “freedom” to commit or condone mistreatment would severely undermine our reputation for a commitment to international law in general, and our efforts to restore the United States’ international reputation with respect to humane treatment.
These words ring even more true today as when the Legal Adviser’s Office first produced the CAT memorandum, particularly given that the clock is running out on the Obama Administration and it is impossible to know whether future administrations will retain the same policy commitments.