For the first time in history, the United States voted against the UN General Assembly’s periodic resolution condemning torture. The only other countries to do so were Argentina and Israel. 169 countries voted in favor. The U.S. vote, which took place last month, is hard to rationalize in any world that values the mandate of the United Nations to work toward international peace, security and human rights.
The General Assembly first resolved, by consensus (without a vote), to condemn torture in 1974 and since then, on a more-or-less tri-annual basis, with the United States always on board. More specifically, the previous Trump administration did not oppose the identically named and substantially similar Resolutions in 2017, 2019, and 2020, all also adopted by consensus.
In 1984, the General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention” or CAT). The Convention entered into force in 1987. The United States was an active proponent of the Convention, signed it in April 1988 during the Reagan administration and ratified it in 1994. The United States has also largely complied with the requirement of the Convention to conform its national legislation to prohibit and punish torture. It did so by passing the Torture Statute in 1994, which criminalizes torture, and the Torture Victim Protection Act in 1992, which creates a civil cause of action for victims of torture. Both laws create jurisdiction in U.S. courts for acts of torture committed outside the United States. The U.S. War Crimes Act also punishes torture in armed conflict on a universal jurisdiction basis (wherever committed in the world, by or against anyone, so long as the perpetrator is found in the United States), thanks in part to highly bipartisan legislation updating that statute in December 2022.
Thus, it is quite odd that the U.S. justified its vote against this year’s Resolution at the U.N. General Assembly’s Third Committee meeting as follows:
“Thank you, Mr. Chair,
“The United States has made clear its intention to disengage from a majority of resolutions in the Third Committee this year. However, the United States would like to take this opportunity to reiterate our view that many of these resolutions recycle the same contentious or irrelevant issue year after year.
“Third Committee resolutions should be short, actionable, and forward-looking. Instead, many resolutions continue to include problematic language that does nothing to advance the United Nations’ core mandate of maintaining international peace and security.
“The UN can no longer afford to waste its resources where there is little or no impact. The number of reports, conferences, and negotiations has grown beyond the point of ineffectiveness and waste, to a level of dysfunction that makes it impossible to carry out vital work.
“Accordingly, the United States requests a vote and will vote “no” on this resolution.
“Mr. Chair, colleagues, we hope to work together in advance of next year’s session of the Third Committee to make it more efficient, relevant, and effective. We refer you to the long form Explanation of Position that will be posted on our Mission’s website for more information. Thank you.”
As of this writing, there has been no further explanation posted on the U.S. Mission’s website. And unlike the EU Explanation that regretted the call for a vote on the Resolution (rather than the traditional adoption by consensus), the U.S. Explanation did not even bother to affirm its opposition to torture and in fact, makes no reference to the substance of the Resolution itself. It does characterize Third Committee resolutions in general as “contentious or irrelevant” and “containing problematic language that does nothing to advance the United Nations’ core mandate of maintaining international peace and security.”
In its Explanation, the United States references the “the United Nations’ core mandate of maintaining international peace and security.” In doing so, the explanation omits the other three core mandates expressed in the Preamble to the UN Charter: maintaining international peace and security; developing friendly relations among nations; fostering international cooperation for economic, social, cultural, and humanitarian issues; and promoting human rights and fundamental freedoms. The four, together, serve as a center to harmonize nations’ actions toward these common goals.
The mandate of the Third Committee is to address a wide range of social, humanitarian, and cultural concerns. It is the principal U.N. General Assembly committee for discussing human rights issues. Thus, and because the U.S. Explanation contains no criticism specific to the substance of the torture resolution, one could perhaps construe the U.S. Explanation as reflecting a newly expressed antipathy to human-rights related efforts in general coming out of the Third Committee.
If the U.S. comments are meant to apply to the torture resolution in particular, it would be astonishing to argue that the consistent reiteration by an overwhelming majority of U.N. members of the commitment to prohibit and punish torture is irrelevant to the accomplishment of human rights and the advancement of international peace and security more generally. The implication that the resolution is contentious is simply false, given the overwhelming support it has always garnered, at least until the United States rejected its adoption by consensus. What the vote, in fact, highlighted, is that the vast majority of States support the Resolution. In any case, contention is hardly a valid basis for rejecting UN action. The very purpose of debate at the U.N. is to air differences and reach conclusions.
There is, however, in the terse explanation, one obscure hint about other potential disturbing reasons for the U.S.’s opposition to the Resolution. The explanation refers to “problematic language” in many Third Committee resolutions. A frequent battleground between the United States and Israel, on one hand (two of the three “no” votes on the torture Resolution) and most international jurisprudence, on the other hand, concerns the extraterritorial application of human rights obligations. This dispute normally arises in connection with determination of the scope of application of the International Covenant on Civil and Political Rights (ICCPR), which obligates States Party “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” The United States and Israel construe this language to limit the Covenant’s scope of application to national territory, whereas most international jurisprudence (including of the International Court of Justice and the ICCPR’s Human Rights Committee) affirms that the Covenant applies when states parties exercise jurisdiction and control outside their own territory. This is relevant to the torture resolution because the ICCPR explicitly addresses the prohibition of torture.
While the United States has historically been squeamish about extraterritorial application of human rights treaty obligations, it has been less so in connection with customary international law, including human rights norms (see here and here). The prohibition against torture is one of the most fundamental customary international human rights norms. Thus, if the extraterritoriality issue is, indeed, a trigger for U.S. rejection of the resolution, it represents an unprecedented giant leap by the United States away from its previous acknowledgments that customary norms have extraterritorial scope.
But the debate about extraterritoriality becomes irrelevant to torture once one considers the Convention against Torture (CAT), to which the United States is one of 175 states party. The CAT has no scope-of-application limitation (as compared, for example, to the ICCPR’s “within its territory and subject to its jurisdiction” language). In fact, the CAT requires states party to prosecute or extradite persons suspected of torture on a universal jurisdiction basis, in other words, regardless of where the torture took place. Not only does U.S. legislation concerning U.S. obligations under the CAT include a universal jurisdiction component, the law has, in fact, been used by the Justice Department to prosecute torture committed abroad.
Another position traditionally taken by the United States and Israel concerns the application of human rights treaties in times of war. This argument posits that in war, human rights treaties give way to the law of armed conflict, or in lawyerspeak, that international humanitarian law (IHL), otherwise known as the law of armed conflict, is the lex specialis, and therefore prevails over human rights law. The United States at one time took a relatively absolutist position on this point, at least as concerns targeting and detention powers. It later moderated its view. Instead of claiming that human rights law has no place in armed conflict in any particular area, the U.S. has recognized concurrent applicability and affirms that IHL governs where there is a particular conflict with human rights law. Like the “no extraterritoriality” claim, the strict lex specialis view is also rejected by the overwhelming weight of international jurisprudence, which holds that human rights law and the law of armed conflict operate in complementary fashion in times of war. Indeed, any claim that human rights law does not apply because in war, IHL applies instead, is at its weakest in relation to the prohibition of torture because the CAT explicitly applies to contexts of war. In addition, the Geneva Conventions, which apply exclusively to armed conflict/war, also explicitly prohibit torture in both international and non-international armed conflict. This also negates any “no extraterritoriality” claim related to the torture prohibition, since all international armed conflicts have an extraterritorial component. Given the shifting nature of U.S. positions on applicability of lex specialis, it is reasonable to ask: Does the U.S. vote against this resolution signal a shift to an even more absolutist position than it earlier held – that human rights law has no place at all in armed conflict?
These twin claims – no extraterritorial application of human rights obligations and no application of human rights law in war – arise in connection with the torture resolution, which reiterates the obligations of States to prevent and punish torture, regardless of where it occurs, and whether or not in war. Perhaps the United States will provide a more detailed explanation for at least appearing to turn its back on one of the most fundamental provisions of international law. If it does so, it will hopefully confirm its understanding that human rights law does apply extraterritorially, as well as to contexts of armed conflict. It will also hopefully confirm its commitments under the CAT and Geneva Conventions, leaving no doubt that the United States recognizes the universality of the prohibition against torture, whether committed on U.S. soil or elsewhere, and whether committed in war or peace.
