UN Official Demands Torture Accountability

appertaining International laws concerning our legal failure to have commenced investigations and prosecutions of officials responsible for war crimes.

II. CRIMES OF TORTURE AND SANCTION DUTIES

With respect to the obligation of every state to enforce such rights and prohibitions and the criminal nature of such forms of ill-treatment, the General Assembly has condemned “any action or attempt . . . to legalize, authorize or acquiesce in torture and other cruel, inhuman or degrading treatment . . . under any circumstances, including on grounds of national security or through judicial decisions[.]”14 The General Assembly stressed that allegations that such forms of ill-treatment have occurred “must be promptly and impartially examined . . . [and with respect to nonimmunity and the duty to prosecute,] those who encourage, order, tolerate or perpetrate acts of torture must be held responsible, brought to justice . . . and severely punished, including the officials in charge of the place of detention[.]”15  

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10 Id. pmbl.

11 Id. ¶ 1.

12 Protection of Human Rights and Fundamental Freedoms While Countering

Terrorism, U.N. G.A. Res. 61/171, pmbl. (19 Dec. 2006), U.N. Doc. A/RES/61/171 (1 Mar.

2007). The same language appeared in a 2008 resolution by the same title. U.N. G.A. Res.

63/185, prmbl. (18 Dec. 2008), U.N. Doc. A/RES/63/185 (3 Mar. 2009).

13 Id. ¶ 1. The same language appears in a 2008 resolution. See U.N. G.A. Res. 63/185,

supra note 12, prmbl. The 2006 resolution used the same language that appeared in a 2004

resolution with the same title. G.A. Res. 59/191, para. 1 (Dec. 20, 2004), U.N. Doc.

A/RES/59/191 (Mar. 10, 2005). See also Human Rights and Terrorism, U.N. G.A. Res.

59/195, pmbl. (Dec. 20, 2004) (which states, in part, “Reaffirming that all measures to

counter terrorism must be in strict conformity with international law, including

international human rights standards and obligations[]”) U.N. Doc. A/RES/59/195 (Mar.

22, 2005).

14 U.N. G.A. Res. 63/166, supra note 8, at para. 5; G.A. Res. 62/148, supra note 8, ¶ 4.

15 U.N. G.A. Res. 63/166, supra note 8, at para. 6. See also id. para. 17 (“[c]alls upon State

parties to the . . . [CAT] to fulfil their obligation to submit for prosecution or extradite those

alleged to have committed acts of torture”); U.N. G.A. Res. 62/148, supra note 8, at para. 5.

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The General Assembly also emphasized that during armed conflict “acts of torture . . . are serious violations of international humanitarian law and . . . constitute

war crimes[]” and that perpetrators “must be prosecuted and

punished[.]” Moreover, these acts can also constitute “crimes against humanity”16-a point evident in the customary post-World War II charters and laws created for prosecution of customary crimes against humanity in the international criminal tribunals at Nuremberg and

Tokyo and in numerous fora that operated in Europe under Control Council Law No. 10, which crimes expressly included torture and “other inhumane acts[.]”17

The General Assembly also took note of the fact that “prolonged incommunicado detention or detention in secret places can facilitate the perpetration of torture and other cruel, inhuman or degrading treatment

or punishment and can in itself constitute a form of such treatment[.]”18  

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See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of

International Humanitarian Law, G.A. Res. 60/147, Annex, part III, ¶ 4, U.N. Doc. A/RES/60/147/Annex (Mar. 21, 2006), stating the following:

In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to nvestigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him.

Id. U.N. Doc. A/RES/60/147 (21 Mar. 2006); Office High Comm’n H.R. [OHCHR] Torture  and Other Cruel, Inhuman or Degrading Treatment or Punishment, Res. 32, U.N. Doc.

E/CN.4/RES/1999/32 (26 Apr. 1999); Office High Comm’n H.R. [OHCHR], Res. 1999/1 (6  Apr. 1999), quoted in Martin Scheinin, Yuji Iwasawa, Andrew C. Byrnes, & Menno T.

Kamminga, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses 7, INTERNATIONAL LAW ASSOCIATION CONFERENCE (London 2000); infra  notes 26-28, 31-32.

16 G.A. Res. 62/148, supra note 8, ¶ 6. Prosecution of torture as a crime against humanity has occurred in the International Criminal Tribunal for Former Yugoslavia (ICTY). See, e.g., The Prosecutor v. Kunarac, Kovac, and Vukovic, ICTY-96-23/1-T (Trial Chamber, 22 Feb. 2001).

17 See, e.g., U.N. HCR, Charter of the International Military Tribunal at Nuremberg, Annex to the London Agreement, art. 6(c) (Aug. 8, 1945) (“other inhumane acts committed against any civilian population[] . . . .”); Charter for the International Military Tribunal for

the Far East (Tokyo Charter), art. 5(c), as amended by General Orders No. 20 (Apr. 26, 1946) (“other inhumane acts committed . . . before or during the war[]”); Allied Control Council Law No. 10, art. II(1)(c), (Dec. 20, 1945) (“torture, rape, or other inhumane acts committed

against any civilian population[] . . . .”); 50 (Jan. 31, 1946).

18 U.N. G.A. Res. 63/166, supra note 8, at para. 20; G.A. Res. 62/148, supra note 8, ¶ 15.  See also G.A. Res. 61/153, supra note 8, ¶ 12.

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In 2006, in response to unlawful conduct authorized by President Bush and others in his administration,19 the Committee Against Torture, which operates under the auspices of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(CAT),20 recognized that “secret detention . . . onstitutes, per se, a violation of the Convention[]” and that “enforced disappearance [a previously widely recognized crime against humanity under customary

international law]21 . . . constitutes, per se, a violation of the Convention.”22 The Committee Against Torture also declared that “detaining persons indefinitely without charge, constitutes per se a violation of the Convention[.]”23

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19 See, e.g., Paust, Executive Plans, supra note 1, at 812, 824-51; Paust, Above the Law, supra note 1, at 345-59.

20 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. [hereinafter CAT].

21 With respect to the crime against humanity known as forced disappearance and involving a refusal to disclose either the name or whereabouts of a detainee, see, e.g., Rome Statute of the International Criminal Court, art. 7(1)(i), (2)(i) (forced disappearance is a crime against humanity); Rome Statute of the International Criminal Court, July 1, 2002, 2187 U.N.T.S. 90 [hereinafter Rome Statute of the ICC]; International Convention for the

Protection of All Persons from Enforced Disappearance, pmbl., adopted by G.A. Res. 61/177,U.N. Doc. A/61/177 (Dec. 20, 2006); 22 U.S.C. § 2304(d) (“causing the disappearance of persons” is among “flagrant” and “gross violations of internationally recognized human rights”); S. REP. NO. 102-249, at 9 (1991), quoted in Xuncax, 886 F. Supp. at 172; The Prosecutor v. Kupreskic, ICTY-95-16-T (Trial Chamber, Judgment, 14 Jan. 2000); In re Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994); Bowoto v. Chevron Corp., No. C99-02506 SI, 2007 WL 2349336 at *29 (N.D. Cal. Aug. 14, 2007) (“there is

sufficient circumstantial evidence of . . . forced disappearance [in Nigeria] to support tort claims”); Tachiona v. Mugabe, 234 F. Supp. 2d 401, 416, 426 (S.D.N.Y. 2002); Xuncax v. Gramajo, 886 F. Supp. 162, 184-85 (D. Mass. 1995); Forti v. Suarez-Mason, 694 F. Supp. 707, 710-12 (N.D. Cal. 1988); 22 U.S.C. § 2151n(a) (2000); Inter-American Convention on the Forced Disappearance of Persons, art. II, June 9, 1994, reprinted in 33 I.L.M. 1529, 1529 (1994); Council of Europe Parliamentary Assembly, Res. 1433, Lawfulness of Detentions by the

United States in Guantanamo Bay, paras. 7(vi), 8(vii)-(viii) (26 Apr. 2005); JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW:

RULES 340-43, 421, 439 (ICRC 2005); Jose E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT’L L. 175, 199, 210-11, 213 (2006); M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 CASE W. RES. J. INT’L L. 389, 411-13 (2006); Maureen R. Berman, Roger C. Clark, State Terrorism: Disappearances, 13 RUTGERS L.J. 531, 531 (1982);

Jordan J. Paust, Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions, 70 NOTRE DAME L. REV. 1335, 1352-56 (2004); Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law, 57 CASE W. RES. J. INT’L L. 309 (2006).

22 U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Conclusions and Recommendations of the Committee against Torture, United States of America, ¶¶ 17-18, U.N. Doc. CAT/C/USA/CO/2 (May, 18 2006), available

at http://www2.ohchr.org/english/… [hereinafter CAT Report].

23 Id. ¶ 22.

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Also in 2006, the United Nations Security Council reaffirmed “its condemnation in the strongest terms of all acts of violence or abuses committed against civilians in situations of armed conflict . . . in particular . . . torture and other prohibited treatment . . . .”24

Additionally, the Security Council demanded that all parties to an armed conflict “comply strictly with the obligations applicable to them under international law, in particular those contained in the Hague Conventions of 1899 and 1907 and in the Geneva Conventions of 1949 . . . .”25

The Security Council also stressed “the responsibility of

States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes, genocide, crimes against humanity and serious violations of international humanitarian law[,]”26 which can include the use of torture and cruel and inhumane treatment.

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24 S.C. Res. 1674, ¶ 5, U.N. Doc. S/RES/1674 (Apr. 28, 2006).

25 Id. ¶ 6. See also S.C. Res. 1566, pmbl., U.N. Doc. S/RES/1566 (Oct. 8, 2004) (States

must “ensure that any measures taken to combat terrorism comply with all their obligations under international law . . . in particular international human rights, refugee, and humanitarian law[]”).

26 S.C. Res. 1674, supra note 24, ¶ 8; see also S.C. Res. 1820, pmbl., U.N. Doc. S/RES/1820 (June 19, 2008) (“Reaffirming also the resolve expressed in the 2005 World Summit Outcome Document to eliminate all forms of violence against women and girls, including by ending

impunity . . .”); ¶ 4 which states, [R]ape and other forms of sexual violence can constitute a war crime, a

crime against humanity, or a constitutive act with respect to genocide, stresses the need for the exclusion of sexual violence crimes from amnesty provisions . . . and calls upon Member States to comply with their obligations for prosecuting persons responsible for such acts . . . and stresses the importance of ending impunity for such

acts . . .

Id. See also S.C. Res. 1261, pmbl., U.N. Doc. S/RES/1261 (Aug. 25, 1999) (stressing “the responsibility of all States to bring an end to impunity and their obligation to prosecute those responsible for grave breaches of the Geneva Conventions . . . ” which include the use of torture). Concerning the customary international legal responsibility of all states aut dedere aut judicare to either initiate prosecution of or to extradite all persons reasonably accused of such crimes and other violations of customary international criminal law, see, e.g., JORDAN J. PAUST, M. CHERIF BASSIOUNI, ET AL., INTERNATIONAL CRIMINAL LAW 10, 12, 131-44, 155, 169 (3d ed. 2007); RUDIGER WOLFRUM & DIETER FLECK, ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW, reprinted in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW, 683-84 (Dieter Fleck Ed., 2d ed. 2008). See also supra notes 15-16; infra notes 28, 31-32 and accompanying text. Fulfillment of such legal requirements clearly would not be political. In fact, in the United States it is a presidential duty as well as that of a relatively independent Attorney General. See infra note 121.  Under international law, all states have the competence to prosecute such crimes; this is termed universal jurisdiction. See, e.g., RESTATEMENT, supra note 2, § 404; PAUST, BASSIOUNI, ET AL., supra at 155-74; JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE

UNITED STATES 420-23, 432-41 (2d ed. 2003); PAUST, supra note 1, at 49, 16 7 n.155; Marlise Simons, Spanish Court Weighs Criminal Inquiry on Torture for 6 Bush-Era Officials, N.Y. TIMES, Mar. 29, 2009, at A6 (Spanish jurisdiction regarding at least complicity of Gonzales, Yoo,

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Article 146 of the 1949 Geneva Civilian Convention27 expressly and unavoidably requires that all Parties, including the United States, “search for persons alleged to have committed, or to have ordered to be committed, . . . grave breaches [of the Convention], and shall bring such persons, regardless of their nationality, before its own courts” for “effective penal sanctions” or, “if it prefers, . . . hand such persons over for trial to another High Contracting Party . . . .”28 The obligation is absolute and applies with respect to alleged perpetrators of any status. As a party to the Geneva Conventions, the United States must either initiate prosecution or extradite an alleged perpetrator to another state or, today, render an accused to the International Criminal Court. “Grave breaches” of the Convention include “torture or inhuman treatment[]”29 and transfer of a non-prisoner of war from occupied territory.30

Similarly, Article 7, paragraph 1, of the Convention Against Torture expressly and unavoidably requires that a party to the treaty “under whose jurisdiction a person alleged to have committed . . . [for example, torture or ‘complicity or participation in torture,’ is found, ‘shall,’] if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”31 There are no other alternatives.

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Addington, Feith, Bybee, and Haynes with respect to violations of Geneva law and the CAT at Guantanamo Bay would rest partly on universal jurisdiction.). Such a competence (as well as the duty to prosecute) was ecognized early in U.S. history. See, e.g., United

States v. Furlong, 18 U.S. (5 Wheat.) 184, 197 (1820) (“Robbery on the seas is considered as an offence within the criminal jurisdiction of all nations. It is against all, and punished by all . . . within this universal jurisdiction.”); United States v. Smith, 18 U.S. (5 Wheat.) 153, 161, 163 (1820) (piracy is “an offence against the universal law of society”); United States v.

Klintock, 18 U.S. (5 Wheat.) 144, 147-48 (1820) (Piracy “is an offense against all. It is punishable in the Courts of all . . . [our courts] are authorized and bound to punish[.]”); Talbot v. Janson, 3 U.S. (3 Dall.) 133, 159-60 (1795) (Iredell, J.) (“[A]ll . . . trespasses against the general law of nations, are enquirable and may be proceeded against in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it.”), quoted in The Divina Pastora, 17 U.S. (4 Wheat.) 52, 65 (1819) (Marshall, C.J.); Ross v. Rittenhouse, 2 U.S. (2 Dall.) 160, 162 (Pa. 1792) (“universal law”); Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 113, 115 (Pa. 1784) (assault against a foreign consul is a “crime against the whole world,” a “crime against all

other nations,” and it is “the interest as well as the duty of the government, to animadvert upon . . . conduct [in violation of the law of nations] with becoming severity”); Ex parte dos Santos, 7 F. Cas. 949, 953 (C.C.D. Va. 1835) (No. 4,016) (In his writings, Vattel noted the “duty of the sovereign to prevent . . . and the consequent duty to punish of surrender[.]”); United States v. La Jeune Eugenie, 26 F. Cas. 832, 847-51 (C.C.D. Mass. 1821) (No. 15,551 (With respect to “an offence against the universal law of society,” “no nation can rightly

permit its subjects to carry it on, or exempt them . . . [and] no nation can privilege itself to commit a crime against the law of nations.”); 1 Op. Att’y Gen. 515 (1821) (“Crimes against the human family” are prosecutable by “[a]ll nations[]”); 1 Op. Att’y Gen. 68, 69 (1797) (a

“violation of territorial rights . . . [is] an offence against the law of nations . . . [and] it is the

interest as well as the duty of every government to punish”). Universal jurisdiction also provides a jurisdictional basis for support of any state’s request for extradition. If a state cannot prosecute, its duty shifts to a duty to extradite.

27 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC].

28 GC, supra note 27, at art. 146. See also HENCKAERTS & DOSWALD-BECK, supra note 21, at 606-11; 4 COMMENTARY, GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN

PERSONS IN TIME OF WAR 587, 590, 597, 602 (ICRC, Jean S. Pictet ed. 1958); U.S. Dep’t Army, FM 27-10, THE LAW OF LAND WARFARE 178, para. 499 (“The term ‘war crime’ is the

technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime[.]”), 181, para. 506(b) (The requirements set forth in GC art. 146 “are declaratory of the obligation of belligerents under customary international law to take measures for the punishment of war crimes committed by all persons, including members of a belligerent’s own armed forces.”) (1956).

29 Id. at art. 147.

30 Id. at arts. 49, 147; infra note 97.

31 CAT, supra note 20, at art. 7(1).

……….  See Jordan J. Paust, “THE ABSOLUTE PROHIBITION OF TORTURE AND NECESSARY AND APPROPRIATE SANCTIONS” (April 15, 2009) —  (emphasis mine)

Now, see U.S. Code, TITLE 18 > PART I > CHAPTER 118 > § 2441 — § 2441. War crimes