Earlier this week, I interviewed Manfred Nowak, the U.N. Special Rapporteur on Torture, regarding America’s obligations under its treaties and international law to investigate and prosecute allegations of torture and provide legal remedies for torture victims to have their day in court. The podcast recording, and background on these issues, is here. Following is the transcript of the interview:
I send urgent appeals and allegation letters to governments to ask them to investigate these allegations, to stop the practice. I carry out fact-finding missions to many countries in the world, the most recent one was in Uruguay and Montenegro, and next month I go to Kazakhstan or I, of course, I just came back this morning from Bangkok where I delivered a speech to International Harm Reduction Congress on torture and the international drug policy. But it is an expert position; my main profession is that I am a Professor of International Human Rights at Vienna University, and this is a voluntary expert function for the United Nations for six years. I was appointed at the beginning of December, 1st December 2004 and the mandate will end in November 2010.
GG: Back in January of this year, you made a statement in which you said: ”Judicially speaking, the United States has a clear obligation to bring proceedings against top government officials who authorized techniques that under international law are considered torture.”
Can you describe, just in summary form, what the sources of the legal obligations are with regards to bringing proceedings against government officials who either engaged in or authorized torture?
MN: Yes. The United States of America is a party to the United Nations Convention Against Torture from 1984, which clearly contains the obligation to make torture a criminal offense under domestic law, on the one hand, with adequate sanctions taking account of the gravity of torture as a very serious civil rights violation, and then to exercise jurisdiction on the basis of different principles — the territoriality principle, the nationality principle, but even the universal jurisdiction principle, because one wants to make sure that perpetrators of torture have no safe haven wherever they are.
But primarily its the territorial state’s obligation. So, if under the direct jurisdiction of the United States of America, a government official – whether its a high official or a low official or a police officer or military officer, doesn’t matter – whoever practices torture shall be brought before an independent criminal court and be held accountable. That is, the torturer, him or herself, but also those who are ordering torture practices, or in any other way participating in the practice of torture. This is a general obligation, and it applies to everybody; there are no exceptions in the Convention.
GG: The Convention Against Torture is one treaty; the Geneva Conventions, to which the United States is of course also a signatory, also provides that all contracting parties will bring before its courts any individuals or government officials who have committed breaches of the obligations of the Geneva Conventions.
Does Geneva also provide or impose a legal obligation on the United States to investigate and prosecute those who may be guilty of committing war crimes?
MN: Of course, if we are talking about war crimes, or crimes against humanity. But these are really very serious crimes; crimes against humanity are only widespread or systematic practices of torture, or murder, or enforced disappearance etc. And of course the Geneva Conventions only apply in times of armed conflict. So, for instance, they could be applied if US soldiers committed war crimes in Afghanistan during the time of the international armed conflict in 2001. That might be a war crime for which those persons could be brought before a criminal tribunal.
But in my opinion, the Geneva Conventions are not the main source because I do not consider this so-called “war on terror” as an international armed conflict. This was the paradigm of President Bush in order to justify certain practices under the assumption that human rights law would not apply, but of course human rights law applies. So the torture convention applied not only on the territory of the United States, but everywhere where torture is practiced under the jurisdiction of the United States, whether it is in Guantanamo Bay, whether it’s in Iraq, whether it’s in Afghanistan. It is not the humanitarian law which is primarily applicable, it is human rights law.
GG: One of the arguments that people have made in the United States against this view – that the Convention Against Torture requires investigation and prosecution – is that after President Reagan signed the treaty on behalf of the United States, the Senate ratified the treaty in 1994, but stipulated that it shall not be self-executing, that in order for certain provisions to become valid as part of domestic law, enabling legislation would need to be enacted, and some people say that legislation was never enacted, and therefore those obligations do not bind the United States, I think, as a matter of domestic law.
Does that affect the international obligations of the United States, and what’s your response to that view?
MN: No, of course not. Of course, every state that ratifies the treaty has an obligation to ensure in its domestic law, that the treaty obligations are actually implemented. How they do it, that is up to the state’s process, they just have to do it. Now, in principle, the United States, you have article or section 2430, that is applying. It was only because of the torture memos coming from the Justice Department that the term “torture” has been defined in a new and extremely narrow way. But that is not the correct interpretation.
If you define torture in the way as the United Nations Convention actually is requiring, it’s clear that many of those methods including waterboarding etc. fall under the definition of torture and persons can be prosecuted under the US Code. In addition, of course, you have other provisions — you have the Fifth and Eighth Amendments to the US federal constitution – I mean , the legal possibilities for bringing perpetrators of torture to justice under domestic United States law exists. It’s just a question whether they are applied or not.
GG: But the obligation under the Convention Against Torture, that states that states shall have the obligation to bring before their courts individuals against whom there’s credible evidence that they engaged in torture. In your view that is a binding obligation on the United States?
MN: Of course they are binding obligations. There is no question, even if – no state has an obligation to make an international treaty directly applicable. There are monist and dualist states, there are different theories, but the obligation is to ensure that you enact domestic laws so that the international obligation can be honored. And there domestic laws in the United States of America criminalizing torture.
GG: Now the question as to whether or not to actually prosecute, some argue, and I think you believe this, that the convention against torture compels the United States, when there’s credible evidence, to criminally investigate – not just conduct an investigation, but criminally investigate – and then prosecute. Others say that even with the Convention Against Torture, there is discretion that the government retains as to whether or not prosecutions are actually warranted. And if the government decides that it might be too politically divisive, or too difficult to do, that signatory states to the convention against torture still retain the right to decide not to do it.
MN: First of all, it’s true that not every investigation into an allegation of torture must be a criminal investigation. If you look at Article 13 of the Convention, it’s much broader. What is important is that every single credible allegation of torture, be it now by a victim, be it by other sources, must be investigated by a competent authority, and I would think that there is a enough evidence about torture practices under the time of the Bush administration that would warrant an independent, comprehensive investigation, not only about the legal memos, and the legal authorization, but about the actual practice. Who was tortured by whom, with what methods, etc. That should be first investigated. It does not have to be a criminal investigation. On the basis of this evidence – it might be a congressional commission, it might be a special investigator, that’s up to the United States – but what is important is there will be investigation. And as soon as the evidence is there, then of course it is, like with every other crime, it’s a question what to deal, what to do, what methods to be taken.
There are other ways; Article 14 says every victim of torture has a right to an adequate remedy and to reparations that could be rehabilitation, compensation, other forms of reparation. So far, the victims of torture in the fight against terrorism, have not been awarded any kind of compensation or other method of reparation, because of the state secrecy privilege that was invoked before US courts. That’s one way of providing justice. But there is also the criminal responsibility, and that is of course up to the prosecutors and the courts.
The prosecutors must know, on the basis of such investigation, is there enough evidence against a particular individual? The torturer, his or her commanders, those who authorized or ordered torture – if there’s enough evidence to prove beyond reasonable doubt, that this particular individual is guilty of torture. That is like with every other crime. If you have a normal homicide, again it’s up to the prosecutor to see to have enough evidence to file an indictment, then it’s up to the independent criminal courts to decide whether the person is guilty or not, and if guilty to sentence him or her to an appropriate penalty.
GG: So, it would be consistent with the Convention Against Torture to say, we’ve had a prosecutor look at these crimes, and consistent with the way prosecutors make decisions in other crimes, they’ve either decided to go forward or not go forward, based on legitimate questions of discretion, but it’s inconsistent with the treaty to say in advance, we are going to grant immunity as a political matter to all torturers. Is that the distinction that’s fair to draw?
MN: Yes. Certainly, I think if there is any kind of amnesty law, or executive order to say that nobody would be prosecuted for the crime of torture, that’s a clear violation of the obligation under the Convention Against Torture, even if it’s only those who actually tortured upon the command of higher authority; there, Article 2-3 of the Convention is very clear that the fact that somebody tortures on the basis of an order does not relieve him or her of the obligation not to torture. That might then lead to mitigating circumstances if you can prove that you were really in a situation that you just couldn’t do differently because you would have had experienced yourself sanctions if you disobeyed this order. It might be mitigating, but it doesn’t take away the guilt and the illegality of the torture act by the individual CIA officer or military person or also from private security companies who actually practiced torture in Iraq.
At the same time, you have a command responsibility, that means not only those who directed torture are responsible, or that those who order, being in a superior position, a command position, who authorize torture or condone torture – there might be torture by acquiescence. And there are others who might participate, for instance providing legal excuses for torture methods by pretending that these kind of practices would not actually amount to torture as prescribed by US criminal law.
GG: I have just a couple more questions. On that last point, which is the idea of the liability for those who pretended, or purported to legalize methods that are clearly criminal under long-standing international law, there is a professor from New Zealand, Kevin Jon Heller, a professor of international law, who wrote this morning that certain cases at the Nuremberg trials, including The Ministry Cases, in which German officials, who did nothing other than authorize certain practices that violated international law, and actually the accusation was they failed to, when asked, whether the deportation of Jews from France was actually a violation of international legal obligations that they were actually prosecuted as war criminals for giving legal sanction to what were clearly war crimes. Is there precedent in international law for holding accountable legal officials within a government for giving legal approval to things that are clearly crimes?
MN: Now, just at the moment I wouldn’t have a clear case that I could cite to you, in addition to the case you just cited, where legal opinions as such were a reason for criminal prosecution. Of course, again, any criminal judge would have to prove beyond reasonable doubt that such a legal opinion was written in order to contribute to a practice of torture. And that is something one really has to prove in an individual case.
But legally speaking, of course, if these memoranda were written in the clear knowledge that, on the basis of these memoranda, then orders would be given, and persons would be subjected to these kind of interrogation techniques, that one should know actually can easily amount to torture, then we are speaking about participation, we are speaking about an indirect responsibility. But again it is up to the criminal court to actually establish that link.
As we know, for instance, when Defense Secretary Rumsfeld authorized certain interrogation methods at Guantanamo Bay, that he was warned by the Counsel of the Navy, Alberto Mora, who clearly said, what you’re authorizing and what seems to be justified by the Bybee and John Yoo memoranda of 2002 – we are now back in 2002 – what you are authorizing is torture. So Secretary Rumsfeld was actually warned. Nevertheless, he authorized these interrogation techniques, and later the legal basis, kind of, the legal justification, in other words, these memoranda of 2002, were later withdrawn as being not in accordance with the correct interpretation of the American criminal law.
GG: Now, last question. You mentioned in your response to what I asked you at first, about what your duties are, that you deal with questions of torture, allegations, in a whole variety of other countries. If the United States were to announce to the world that notwithstanding this huge body of evidence that has become publicly available, and there’s lots more that will likely become available in the future, that we will decide that we will do nothing in response to these allegations, that we will immunize the people who ordered it and justified it and did it, what effect would that have on the ability of the United Nations and on your ability to convince other nations to take allegations of torture seriously, and to comply with their obligations under international law to hold torturers accountable?
MN: It would be a very, very negative precedent. Already, the undermining of the absolute prohibition against torture under the Bush administration had a very negative effect on many other countries in the world fighting terrorism, who said if even the United States of America is practicing these torture methods, why should we not be allowed, and why are you criticizing us? I have heard that on many of my fact-finding missions in different countries of the world.
If now, the Obama administration that came to power with the policy of change – President Obama has done quite a lot immediately from the beginning, to change his policy in relation to the fight against terrorism: to stop torture, to stop secret places of detention, to close down Guantanamo Bay, etc. – if this same administration were to turn and give a blank amnesty to all those who committed torture in the past, that is for me, I’m sure that that will not happen, and it would be a very negative precedent again, for many other states who have also a similar past and to whom the United Nations and other say, but you have an obligation actually to investigate and provide justice.
So, it would have a negative effect, but as I said, also the fact that there were four memoranda were made public by President Obama without a court order under the Freedom of Information Act etc. shows to me that there is a serious willingness in the United States of America, both in Congress but also in the Office of the President, to take this seriously and to investigate and I’m sure also to take there right measures to provide justice. That does not mean necessarily that every individual needs to be prosecuted and sentenced for torture. I do have a certain understanding that in such a situation, and I should also say that the attacks of 9/11 2001 were for the United States, but not only for the United States, were a traumatic experience, and that in such a situation you take quite strong measures. But on the other hand, the fight against terrorism, even global terrorism of the type of al-Qaeda, has to be fought, in a democracy in particular, within the rule of law, within international human rights obligations, and that includes also, if things went wrong, to take the right measures of reparations, and that includes also criminal justice.
GG: Manfred Nowak, the United Nations Special Rapporteur on Torture, thanks very much for taking the time to speak to me.
MN: Thank you very much.
[Transcript courtesy of Thames Valley Transcribe]