Last week in its appearance before the Committee Against Torture, the United States “change[d] and clarifi[ed]” two important legal positions regarding the scope of the Convention Against Torture (CAT).  In my prior post, I addressed the Obama administration’s significant change of position regarding extraterritoriality.  Here, I explore the administration’s second significant shift in position, regarding application of the CAT in situations of armed conflict.

In its 2006 oral appearance before the CAT Committee, the Bush administration stated that detention operations in Guantánamo, Afghanistan, and Iraq were “governed by the law of armed conflict, which is the lex specialis applicable to those operations.” Asserting that the CAT “[w]as never intended to apply to armed conflicts,” the United States explained that the Convention would continue to apply, for example, “to the treatment of prisoners in domestic U.S. prisons that are not governed by the law of armed conflict.”  One year later, the United States reiterated that “[t]he law of war, and not the Convention, is the applicable legal framework.”  The Bush administration thereby took the “position that the CAT did not apply at all to military operations in armed conflict, but acknowledged that the CAT would continue to apply to unrelated domestic activities.

As Harold Koh argues on this site, the Bush administration thus articulated a complete displacement theory of lex specialis, taking the position that international humanitarian law (IHL) entirely displaced operation of the CAT in situations where IHL applies.  This meant that not only would the Convention’s substantive provisions not apply, but that the CAT Committee would have no jurisdiction to inquire about U.S. activities in armed conflict.  This, combined with the Bush administration’s position on non-extraterritorial application of certain CAT provisions, created a belt-and-suspenders insulation from CAT committee oversight of U.S. activities ranging from the domestic detention of José Padilla, to Guantánamo, to CIA black sites.

The CAT Committee, by contrast, has consistently taken the position that “the Convention applies at all times, whether in peace, war or armed conflict.”

Last week before the CAT Committee, the U.S. abandoned the complete displacement theory and moved much closer to the Committee’s position.  If the 2006 position might be equated to “field preemption” in U.S. domestic law terms, the government’s new position is akin to “conflict preemption,” which assumes that the two bodies of law ordinarily operate together and are “mutually reinforcing.”  Only where the terms of IHL and the CAT conflict would IHL prevail as the lex specialis. 

On Wednesday the White House stated 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.)

It also affirmed

[t]he 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 next day, the State Department’s Acting Legal Adviser, Mary McLeod, responded to a question from the Committee regarding the CAT’s applicability in armed conflict as follows:

In terms of our international law obligations during situations of armed conflict, the law of armed conflict is the lex specialis and as such is the controlling body of law with regard to the conduct of hostilities and the protection of war victims.

Moreover, as the United States has already recognized, a time of war does not suspend the operation of the Convention Against Torture, which continues to apply, even when a State is engaged in armed conflict. Article 2(2) of the Convention specifically provides that neither a state of war nor a threat of war may be invoked as a justification for torture.  In addition, the [law of armed conflict (LOAC)] and the Convention contain many provisions that complement each other and, in many respects, [are] mutually reinforcing.

For example, the obligations to prevent torture and [CIDT] in the Convention remain applicable in times of armed conflict and are reinforced by complementary prohibitions in the [LOAC]. Whether you are looking at human rights law or the [LOAC], the prohibition against torture and cruel treatment is categorical. There are no gaps.

Although Article 14 of the Convention contemplates an enforceable right to fair and adequate compensation for victims of torture, it would be anomalous under the law of war to provide individuals detained as enemy belligerents with a judicially enforceable individual right to a claim for monetary compensation against the detaining power for alleged unlawful conduct. The Geneva Conventions contemplate that claims related to the treatment of POWs and protected persons are to be resolved on a state-to-state level and war reparations claims have traditionally been, and as a matter of customary international law are, the subject of government-to-government negotiations, as opposed to private law suits.

In closing, there can be no question that the clear position of the United States is that torture and cruel, inhuman and degrading treatment or punishment are legally prohibited everywhere and at all times. There can also be no question that these prohibitions continue to apply even when the United States is engaged in armed conflict. These prohibitions exist under domestic and international law, including human rights law and the [LOAC].

The United States remains dedicated to enforcing these prohibitions to ensure that there are no gaps, that there are no loopholes, in order to fulfill a primary purpose of the Convention, to recognize the inherent dignity of persons and [the] right to be free from torture and cruel, inhuman, degrading treatment or punishment.

(View Mcleod’s comments in the third video clip here at 16 mins 38 seconds.)

Taken together, these various statements make clear that the U.S. is articulating a new and much narrower approach: CAT obligations “remain applicable in times of armed conflict and are reinforced by complementary prohibitions in the LOAC,” and although “the more specialized laws of war . . . take precedence over the Convention where the two conflict, the laws of war do not generally displace the Convention’s application.”  The United States therefore articulated a welcome and substantially refined vision of the relationship between IHL and the CAT, in which the terms of the CAT presumptively apply, except in the quite specific case of a conflict between IHL and a particular CAT provision.

Reconciling the CAT and IHL

As John Bellinger has noted, the humane treatment requirements of the CAT and IHL are substantially equivalent.  Like the CAT, the Geneva Conventions prohibit torture and cruel and humiliating treatment in both international and non-international armed conflict, including through Common Article 3.  A number of the enforcement requirements are similar as well. Torture constitutes a grave breach of the Geneva Conventions, a serious violation of Common Article 3, and a war crime under the customary international law of armed conflict, and must be criminally punished under the Geneva Conventions on principles of universal jurisdiction — an obligation that was incorporated from IHL into the CAT (Art. 5(2)).  The CAT also prohibits invoking “orders from a superior officer” as a justification for torture (Art. 2(3)) – a familiar IHL concept from Nuremberg.  When the United States ratified the CAT, the U.S. military advised the Senate that “no change in U.S. military law would be required” to comply with this provision.

The one notable difference between the substantive treatment requirements of the CAT and IHL is that the IHL obligations are in some ways broader.  For example, while CAT Article 1 defines torture as requiring some level of state action, the prohibition on torture in armed conflict applies to non-state actors. The fact that the Geneva Conventions might in some ways be more protective than the CAT, however, was recognized by the drafters of the CAT, who included savings clauses to ensure that the CAT would not dilute the existing IHL regime. Articles 1(2) and 16(2) thus defer to other international law instruments which, inter alia, “may contain provisions of wider application.” Art. 1(2).  Thus, no conflict arises between the CAT and IHL where IHL is more protective – the CAT simply provides that IHL will apply.

But how should we think about the opposite situation: in which the CAT provides greater protections than IHL?  As noted in my first post, the CAT creates explicit and detailed obligations for States to prevent, criminally punish, extradite, investigate, train, and remedy violations, in order to “make more effective” the universal prohibitions on torture and CIDT.  Many of the CAT’s provisions create more detailed obligations in this regard than any codified provisions in IHL.

According to the International Law Commission (ILC), the lex specialis maxim provides that “whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific” (p. 408).   Applying this principle to the CAT, then-State Department Legal Adviser Harold Hongju Koh concluded that as the later-in-time, generally applicable, and more specific treaty obligation, “to the extent that the CAT may impose some (quite limited) additional obligations on a State beyond the traditional rules of armed conflict, … it is the Convention Against Torture that controls” as the lex specialis.  (Emphasis omitted).

The United States has not fully embraced this position.  The oral statement on Thursday made clear that the United States continues to view IHL as the lex specialis in relation to the CAT.  However, crucially, the U.S. also affirmed that the Convention and IHL have  “many provisions that complement each other and, in many respects, [are] mutually reinforcing,” and that IHL would “take precedence” over the CAT only “where the two conflict.” The critical question, then, becomes when the two actually “conflict.”  If the United States viewed every divergence between the CAT and IHL as creating a “conflict,” then its position that the CAT generally applied in armed conflict would be gutted.  The CAT would create no obligations applicable to military operations beyond those that already exist in IHL.  But the United States’ specific invocation last week of Article 15 of the CAT makes clear that it is not taking the position that every divergence creates a conflict.  Article 15 prohibits the introduction of evidence derived from torture in legal proceedings, and there is no equivalent express provision in the 1949 Geneva Conventions or the two Additional Protocols. Last week the United States nevertheless affirmed its “obligation to abide by the exclusionary rule set forth in Article 15” both for the Guantánamo Periodic Review Boards and Military Commissions – confirming that Article 15 applies to military adjudicative proceedings in armed conflict.

The United States’ position that the CAT and IHL are “complementary” and “mutually reinforcing” in wartime settings except in case of “conflict” indicates an approach akin to that of the International Court of Justice (ICJ) in the Nuclear Weapons Advisory Opinion and of the European Court of Human Rights in the recent Hassan case.  Both courts have made clear that “the protections offered by human rights conventions and that offered by international humanitarian law co-exist in situations of armed conflict.” (Hassan, para. 102) This approach rejects the complete displacement of human rights law in armed conflict, provides for the harmonization of IHL and human rights law when possible, and allows the flexibility to defer to an IHL rule that is controlling in its specific context.

Thus, the ICJ has held that the prohibition on “arbitrary” deprivation of life under Article 6 of the ICCPR could be harmonized with IHL rules and thus would not be violated by a killing committed consistent with IHL (para. 25).  As Shaheed Fatima explained on Just Security, the European Court concluded in Hassan that the rules governing detention under the Third and Fourth Geneva Conventions could not readily be harmonized with the text of Article 5 of the European Convention on Human Rights, but resolved this specific conflict in favor of applying the IHL rules.  The court nevertheless emphasized that “the safeguards under the [European] Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law” (para. 104). The court also left doubt whether it would similarly defer to IHL outside of international armed conflict, or where the relevant rules were not such “accepted features of international humanitarian law” (para. 104).

The Case of “Conflict”: Article 14

As evidence of what the U.S. considers a “conflict” in which IHL would prevail over a provision of the CAT, the Acting Legal Adviser pointed to Article 14(1).  That Article  provides, inter alia, that “[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”  The U.S. has long considered this provision to require a judicially enforceable right to compensation for acts of torture occurring in territory under its jurisdiction.  And indeed, an obligation to provide individual remedies for violations is common to human rights treaties. McLeod explained, however, that “it would be anomalous under the law of war to provide individuals detained as enemy belligerents with a judicially enforceable individual right to a claim for monetary compensation against the detaining power for alleged unlawful conduct.” She asserted that both the Geneva Conventions and customary international humanitarian law provide that wartime claims are to be resolved through “state-to-state” agreements, as opposed to private law suits.

It is true that international humanitarian law traditionally has contemplated that harms committed in armed conflict would be compensated between states, and that the receiving state in turn would be responsible for affording compensation to its citizens. However, this compensation regime was developed for international armed conflicts between states,  and is not well suited for remedying harms in modern non-international armed conflicts between states and non-state armed groups.  In recent years, the principle that compensation in armed conflict is due only to states, not to individuals, has been challenged in both international and non-international armed conflicts — including in the ongoing effort of Italian citizens to recover for war crimes committed by Germany in World War II.  And the limitation of remedies to states has been significantly eroded in the European and Inter-American human rights systems, both of which have applied the remedial provisions of the regional human rights conventions to violations arising in armed conflict settings.  Indeed, requiring compensation to individuals for such violations has been a notable feature of the Inter-American system’s effort to grapple with the internal wars of the 1970s, 1980s, and 1990s.

One may reasonably question the United States’ claim of a conflict between IHL and the right to enforceable compensation under Article 14, such that application of the CAT rule would be “anomalous.”  On its face, nothing precludes application of this obligation to acts of torture occurring in armed conflict.  This is a narrow obligation, after all, and the CAT was intended to strengthen the universal prohibition on torture.  The claimed competing IHL rule is at best unwritten in non-international armed conflict, and certainly lacks the same qualities of clarity that characterized the Geneva convention provisions applied in Hassan.  Nor have human rights bodies typically refrained from applying the remedies afforded by human rights law in deference to IHL rules. And nothing in IHL precludes states from augmenting the remedies contemplated by that system through the creation of civil remedies enforceable by individuals, whether through their domestic legislation or through international agreements such as the CAT.  Indeed, Article 75 of Additional Protocol I, which prohibits torture and humiliating and degrading treatment, expressly provides that “[n]o provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law.” Art. 75(8).  This savings clause suggests that IHL in this context would welcome the additional remedies afforded by the CAT.

There may be various reasons why the U.S. adopted this position.  Perhaps it simply believed that this IHL principle was sufficiently clear and established that the CAT could not be understood to have supplanted it.  This approach might be viewed as consistent with one proposed approach of the ILC Harmonization Study, which described lex specialis as a “conflict-solution technique” for addressing situations “where two legal provisions that are both valid and applicable,  . . . . provide incompatible direction on how to deal with the same set of facts” (para. 57) Perhaps the U.S. had broader concerns about the application of the remedial provisions of human rights law in armed conflict contexts.  Or perhaps the government was concerned that it otherwise was not in compliance with Article 14.  A cursory review of the United States’ report to the CAT Committee (p. 53-55) indicates that none of the referenced with respect to Article 14 would apply to victims of the U.S. “enhanced interrogation” program.  And none of these individuals have received a judicially-enforced remedy.  For example, no compensation has been paid to individuals like Khaled El-Masri, a German national whom the European Court of Human Rights recently found was captured in the former Yugoslav Republic of Macedonia, taken by U.S. authorities to a CIA facility in Kabul, and then abandoned by a roadside in Albania after the U.S. decided it was a case of mistaken identity.  Perhaps the United States could not bring itself to acknowledge that with respect to provision of judicially enforceable remedies, the United States is in breach of its CAT obligations.

That said, there is much to applaud in the new U.S. position.  The U.S. has clearly taken immense steps toward clarifying, refining, and narrowing its understanding of the relationship between the CAT and the law of armed conflict – limiting the situations in which IHL would control to conflicts between the overlapping bodies of law.  Although the administration’s understanding of conflict is not entirely clear, mere divergence between the two legal regimes, and mere heightened obligations under the human rights treaty, do not in themselves cause the human rights rule to be displaced.  The United States has thus brought its methodology for evaluating the relationship between IHL and the CAT largely into conformity with the dominant approach of human rights bodies.  And contrary to prior administration, in so doing it has also taken the important step of acknowledging the CAT Committee’s jurisdiction over actions taken in armed conflict.

This is a very welcome development, and one that will inure to the broader benefit of the relationship between U.S. human rights treaty obligations and IHL.  For example, the position lends public clarity to the statement in Harold Koh’s ICCPR memo that IHL is the lex specialis in armed conflict – a statement that some have misinterpreted as reflecting a complete displacement position.  In fact, that memo’s discussion of the right to life (p. 53) makes clear that Koh is describing this narrower approach to lex specialis, under which IHL standards inform the meaning of an international human rights rule operating in the same subject matter area.

We should not forget that the positions that the CAT’s prohibition on CIDT did not apply extraterritorially and that the Convention did not apply in armed conflict that the United States articulated in 2006 were part and parcel of a series of legal positions that were asserted to avoid legal constraint in the U.S. conflict with Al Qaeda, the Taliban, and associated forces.  These included legal opinions asserting (1) an extremely restrictive  interpretation of the definition of torture (p. 1, 6); (2) that principles of necessity or self-defense could override both CAT obligations (p. 58) and the extraterritorial criminal Torture Act (p. 2); (3) that an order of the President could override CAT obligations (p. 58); (4) that U.S. domestic statutes purporting to prohibit the torture of detainees were unconstitutional (p. 39); (5) that the U.S. non-self-executing declaration to the CAT meant that the U.S. was not bound by the Article 2 non-derogation principle (p. 5); (6) that neither the extraterritorial torture statute nor other U.S. domestic criminal law applied to detainee abuse on Guantánamo; (7) that Common Article 3 of the Geneva Conventions did not apply, and that (8) customary international law did not bind the President or the U.S. Armed Forces regarding the detention conditions of al Qaeda and Taliban prisoners (p. 37).

When the U.S. appeared before the CAT Committee last week, most of these positions had long been reversed by either the courts, legislation or executive order, or revoked by the current administration.  But although the President’s January 22, 2009 executive order 13491 had promisingly mandated treatment of armed conflict detainees worldwide “[c]onsistent with … the Convention Against Torture,” before last week, the Obama administration had never articulated its position on the Convention’s application extraterritoriality and in armed conflict.  Those positions now have also been abandoned, enabling McLeod to declare “[t]he answer to the question whether the U.S. will abide by the universal ban on torture and cruel treatment in armed conflicts, or beyond U.S. borders, including Bagram and Guantanamo, is unequivocally, yes.”

Changes in government legal positions do not come easily.  A change that may seem relatively minor on the outside may take months of internal deliberation to move the ship of state.  But the significance of such a movement can be tectonic.  Last week’s presentations with respect to extraterritoriality and armed conflict were another important step toward closing an unfortunate chapter and restoring the United States’ leadership in the global struggle against torture and CIDT.  They also signaled the opening of a new and welcome chapter in the relationship between the United States and international human rights law.

Thanks to Just Security’s Abby Zeith for transcribing Mcleod’s statements.