Saturday, July 23, 2005

Bush seeks to retain "right" to treat detainees in a "cruel, inhuman and degrading" manner

The Washington Post reports today that Bush is threatening to veto a bill sponsored by Republican Senators that aims, amongst other things, to ban members of the U.S. Military from engaging in the "cruel, inhuman or degrading" treatment of detainees at Guantanamo Bay, fearing that it may interfere with his ability "to protect Americans effectively from terrorist attack." This language obviously recalls both the U.N. Convention against Torture (which the US has ratified), and also the War Crimes provisions of the Rome Statute of the ICC (which, of course, it hasn't). The latter, at least, is something of a red herring in this case, or at best a brick wall; the War Crimes provisions in Article 8 of the ICC Statute, of course, refer to the Geneva Conventions - precisely the treaties that the US exectuive strenuously denies are applicable to the inmates of Guantanamo. It is not, however, unreasonable to observe that, in conducting the "war" on terror, Bush seems quite prepared to resort to war crimes.

However, it may (to the naive, at least) seem surprising that America seeks to retain the right to perform actions contrary to an international treaty to which it is a party - the long title of which, after all, is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They have, however, made a number of reservations to the Torture Convention, including one to the effect that Article 16 (which deals with lesser forms of cruel and inhuman treatment than torture) was only binding on them to the extent that the acts involved were already prohibited by 5th, 8th and/or 14th ammendments to the US Constitution (of these, the 8th seems most salient). Its international legal obligations in this regard are thus, under this Convention at least, no greater than its domestic ones.

Some interesting issues arise nonetheless. Firstly, although it is certainly true that Article 5 of the Convention compels states to "take steps to establish jurisdiction" over acts of torture when, amongst other things "the alleged offender is a national of that State", Aritcle 16 (1) - which deals with cruel, inhuman or degrading treatment - establishes what appears to be a significantly lower level of obligation. In relevant part, it reads simply that:

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 1, 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.

The precise legal status of US jurisiction over Guantanamo Bay in Cuba is, of course, the subject of some controversy; particularly, as Scott has noted, over the habeas rights of the detainees. However, as the Supreme Court noted in Rasul,

By the express terms of its agreements with Cuba, the United States exercise "complete jurisdiction and control" over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.

This seems fairly clear; it would be hard to argue that Guantanamo was not under US jurisdiction in the sense of Article 16 of the Torture Convention, and that the US thus, by refusing to "undertake to prevent" cruel, inhuman and degrading treatment in that territory is in breach of its international legal obligations; not merely under the Torture Convention itself, but under customary international law, if the many voices (including, significantly, the UK House of Lords in the Pinochet case) claiming that the treaty rules now represent norms of custom are to be believed.

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