[Editor’s Note: Just Security is holding a “mini forum” on the change in the U.S. government’s position on the application of the Convention Against Torture beyond U.S. borders and in times of war. This post is the first in a series. Stay tuned for more from Harold Koh and others.]
On Wednesday, the United States explicitly changed its position regarding application of the Convention Against Torture (CAT) extraterritorially and in situations of armed conflict from the position of the Bush Administration. Simultaneously with the appearance of the U.S. delegation before the Committee Against Torture in Geneva, the White House stated that the United States would be announcing “a number of changes and clarifications” to the prior U.S. legal positions. These included:
• In contrast to positions previously taken by the U.S. government, the delegation will affirm that U.S. obligations under Article 16, which prohibits cruel, inhuman, or degrading treatment or punishment, do not apply exclusively inside the territorial United States. The delegation in Geneva will make clear, consistent with the text, negotiating history, and the Senate ratification process, that U.S. obligations under Article 16 (as well as under other provisions of the Convention with the same jurisdictional language) apply in places outside the United States that the U.S. government controls as a governmental authority. The delegation will also make clear our conclusion that the United States currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and over all proceedings conducted there, and with respect to U.S.-registered ships and aircraft.
• The U.S. delegation will affirm the United States’ obligation to abide by the exclusionary rule set forth in Article 15 of the Convention in the Periodic Review Board process for law of war detainees at Guantanamo, as well as in military commissions.
• The delegation will also clarify the United States’ view that a time of war does not suspend the operation of the Convention, which continues to apply even when a State is engaged in armed conflict. Although the more specialized laws of war—which contain parallel categorical bans on torture and other inhumane treatment in situations of armed conflict—take precedence over the Convention where the two conflict, the laws of war do not generally displace the Convention’s application. (emphasis added)
The United States thus stated that the test it will apply for determining the geographic scope of those obligations under the CAT that apply to “any territory under its jurisdiction” is “control as a government authority,” and that areas satisfying this test include Guantánamo Bay and U.S.-registered ships and aircraft.
The U.S. also affirmed that the CAT “continues to apply” when the U.S. is “engaged in armed conflict,” and that “the laws of war do not generally displace the Convention’s application,” although IHL will “take precedence over the Convention where the two conflict.” It further confirmed that application of the CAT to Guantánamo military proceedings includes compliance with the Article 15 obligation to exclude evidence extracted by torture.
Both are significant and welcome modifications of Bush administration positions. In this post and one to follow, I will examine first, what these statements mean with respect to extraterritoriality, and second, what they mean for actions taken in armed conflict.
The CAT includes a number of provisions that apply for States Parties to “any territory under its jurisdiction.” The CAT Committee has taken the position that this phrase “includes all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law.” Under the Bush Administration, Attorney General Alberto Gonzales publicly asserted that the obligation to prevent cruel, inhuman, or degrading treatment (CIDT) in “any territory under [U.S.] jurisdiction” under Article 16 of the CAT did not apply outside the sovereign United States (including to Guantánamo), although this position contradicted internal views at the State Department, as John Bellinger has noted. In exchanges with the Committee Against Torture, however, the Bush administration never acknowledged any place outside the territorial United States to which such CAT obligations would apply. That administration also rejected the view that such jurisdiction included U.S.-registered ships and aircraft, and took the position that this jurisdiction was “not governed” by laws extending U.S. criminal jurisdiction to special maritime and territorial zones outside the United States.
The Obama Administration has now expressly abandoned this position. The U.S. delegation instead has adopted an interpretation that appears closer to that accepted by the ratifying Reagan and H. W. Bush Administrations, and the Clinton Administration, all of which recognized that “any territory under its jurisdiction” included state-flagged ships and aircraft and reached the U.S. special maritime and territorial jurisdiction, which includes Guantánamo. The Obama position might appear to be low-hanging fruit, given that the Guantánamo Naval Base is legally subject to “complete U.S. jurisdiction and control.” But no prior administration had specifically identified a territory outside the U.S. other than ships and vessels that qualified as “any territory under its jurisdiction.” Acknowledging that the CAT’s prohibitions apply to Guantánamo was a step the prior administration was never able to take.
Before turning to the new U.S. position, a few preliminary observations are in order.
First, the fact that the United States acknowledged that it exercises “control as a governmental authority” over Guantánamo and U.S.-flagged ships and aircraft does not necessarily mean that it believes that such control is limited to these places. The United States has not stated what it considers to be the outer limits of this jurisdiction. Indeed, the government as a whole may not have a fully developed view on the question.
Second, the purpose of the CAT was not to prohibit acts of torture and CIDT. Instead, the purpose of the CAT was to “make more effective” those prohibitions, which were already universal, by creating express obligations on States to prevent, prosecute, and remedy violations, as the Preamble makes clear. As the ratifying Reagan and Bush Administrations emphasized, the prohibition of torture and CIDT was already “established as a standard for the protection of all persons, in time of peace as well as war.” This universal prohibition is illustrated by the number of provisions of the CAT that include no express territorial limit. These include the obligation to criminalize all acts of torture (Art. 4); not to return individuals to torture (Art. 3); to prosecute a State’s own nationals for acts of torture wherever located (Art. 5(1)(b)); to share evidence with other States (Art. 9); to train and establish rules regarding the prohibition on torture for all personnel involved in detention (Art. 10); and not to introduce evidence derived from torture in legal proceedings (Art. 15).
Thus, the obligations to “prevent” such acts under Articles 2 and 16 of the CAT do not geographically limit the places where acts of torture and cruel treatment are prohibited. If that were the case, acts of torture under the CAT would not be subject to universal jurisdiction. Thus, the U.S. position that “any territory under its jurisdiction” is limited to locations where the United States exercises “control as a governmental authority” should not be understood to suggest that the prohibition on torture and CIDT is similarly limited. To the contrary, as the White House has again made clear, the official U.S. position is that such acts are prohibited by domestic and international law “at all times, and in all places.”
The Convention only limits to “any territory under [the State’s] jurisdiction” certain obligations: particularly the duties to create institutions and structures to prevent, investigate, and remedy torture and CIDT. These include obligations to “take effective legislative, administrative, judicial or other measures to prevent” acts of torture or CIDT (Arts. 2 and 16); to take an offender into custody (Art. 6); to extradite or submit a case to authorities for prosecution (Art. 7(1)); to ensure the right of victims to complain and to have their case examined by competent authorities (Art. 13); and (at least according to the United States’ understanding adopted at ratification) to ensure an enforceable right to compensation and full rehabilitation for victims of torture (Art. 14). These latter provisions generally presume that the State exercises sufficient control over the location to fulfill the CAT obligation consistent with domestic and international law. It is only to such provisions that the limitation to “any territory under its jurisdiction” applies. And the United States now states that these provisions bind it lawfully where the U.S. government exercises “control as a governmental authority.”
But under the new U.S. legal position, would these provisions reach former black sites overseas? Wednesday, Charlie Savage in the New York Times wrote that the U.S. position “appears to exclude” them. In fact, the U.S. statement does not clearly answer this question one way or the other. That ambiguity also may not be as fraught as some think. As noted above, the prohibition on torture and cruel treatment itself is not limited to “any territory under [a State’s] jurisdiction,” but is comprehensively banned under U.S. and international law. In addition to the CAT itself, as Acting Legal Adviser Mary McLeod informed the CAT Committee in her opening statement, President Obama’s January 22, 2009 Executive order bans torture and cruel inhuman or degrading treatment “consistent with the Convention Against Torture” in situations of armed conflict wherever the U.S. exercises effective control. The Detainee Treatment Act prohibits cruel treatment comprehensively, as do international humanitarian law and customary international human rights law. As the Acting Legal Adviser unequivocally put it, “There should be no doubt: the U.S. affirms that torture and cruel inhuman and degrading treatment are prohibited at all times and in all places and we remain resolute in our adherence to these prohibitions.” She left no doubt that these prohibitions are legal, not merely policy. And when asked expressly on Thursday whether the U.S. considered the prohibition on torture and cruel treatment unequivocal, she said “unequivocally, ‘yes.’”
The U.S. test of “control as a governmental authority” appears to have been lifted directly from the Reagan administration’s ratification package, which explained that
Article 2 provides generally that each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. The term ‘territory under its jurisdiction’ refers to all places that the State Party controls as a governmental authority, including ships and aircraft registered in that State. (Emphasis added). [Message from the President of the United States Transmitting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Treaty Doc. No. 100-20, at 5 (1988)]
The Reagan Administration also took the position that federal laws extending U.S. criminal jurisdiction extraterritorially to “special maritime and territorial” areas, 18 U.S.C. sec. 7, “appear[ed] sufficient” to satisfy the CAT obligation to extend U.S. criminal jurisdiction over torture occurring “in any territory under its jurisdiction.”
The view that “any territory under its jurisdiction” applied to ships and aircraft and was informed by U.S. special maritime and territorial jurisdiction was also embraced by President H.W. Bush and Congress in enacting the original extraterritorial torture statute, 18 U.S.C. 2340(3), and was reaffirmed by the Clinton administration in its appearance before the CAT. Thus, until the George W. Bush administration, although the United States had not publicly defined “any territory under its jurisdiction” with precision, it had never taken the position that this phrase was limited to the territorial United States.
The special maritime and territorial jurisdiction of the United States establishes de jure criminal jurisdiction over U.S.-owned vessels and aircraft and “[a]ny lands reserved or acquired for the use of the United States and under the exclusive or concurrent jurisdiction thereof.” The latter has long been understood to include Guantánamo, and could be understood to include diplomatic, consular and military facilities, including embassies. Indeed, as amended, the current version of 18 U.S.C. sec. 7 expressly applies U.S. criminal jurisdiction in such places, at least with respect to crimes committed by U.S. persons. In all such extraterritorial places, the United States accordingly exercises de jure control as a governmental authority, as a matter of U.S. domestic law.
All of this suggests that places where the United States exercises “control as a governmental authority” both legally and practically must be understood to extend beyond Guantánamo, ships and aircraft. And appropriately so. U.S. military bases overseas are commonly subject to Status of Forces Agreements that exclude the territorial state from exercising legal jurisdiction over U.S. activities. Embassies and other diplomatic facilities are legally immune from the enforcement of local law or intrusion by local authorities. Indeed, for many countries, embassies may be the place where extraterritorial acts of cruel treatment are most likely to occur, precisely because of their inviolability, as the recent Khurts Bat case (which involved Mongolia’s abduction and drugging of a national in its Berlin embassy) demonstrated.
The U.S. may also exercise “control as a governmental authority” within the meaning of the CAT even beyond such territory. The drafters of the CAT recognized, for example, that “any territory under its jurisdiction” also included control over occupied territory. In 2005, even the Bush-era OLC, in a classified (and later revoked) secret memo to the CIA, concluded that “any territory under its jurisdiction” could include areas where a state exercises “de facto authority as a government” (emphasis added).
Moreover, international law understandings of jurisdiction have evolved significantly since the CAT was adopted and ratified. This is particularly true in the human rights area, where, as I have explained jurisprudence from international and regional tribunals has converged around a standard that equates jurisdiction with a government’s exercise of effective control. The United States also has exercised control as a government in recent years in locations such as occupied Iraq. The question of when a state exercises control as a government thus will continue to evolve both legally and factually as states act outside their borders, and as jurisprudential and technological developments in cyberspace and elsewhere increasingly defy tying jurisdiction to geography.
In light of these developments in international law, which are also reflected in the CAT Committee’s reading noted above, Legal Adviser Harold Hongju Koh concluded in January 2013 that obligations applicable in any territory under a state’s jurisdiction should apply wherever a government “exercises sufficient effective control to be able to exercise the relevant legal or regulatory authority.” The new U.S. position announced on Wednesday did not use that exact phrase, but it did expressly acknowledge extraterritorial application based on “control as a governmental authority.” This is a significant event. Since the Sale v. Haitian Centers Council decision in 1993, the United States has argued for strict territoriality with regard to virtually every human rights treaty that it has ratified. The new Obama position now expressly recognizes the extraterritorial scope of the territorially qualified provisions of the CAT, and offers a test that expressly applies these provisions to Guantánamo, ships and aircraft. As important, the Obama Administration did not limit its position to these areas. That move now leaves room open for the U.S. interpretation of “control as a governmental authority” to potentially clarify and evolve according to developing rules of international law that the United States accepts.