What is the Remedy for American Torture?

Asst. Sec. of State for Democracy, Human Rights, and Labor, Tom Malinowski stated to the UN Committee on Torture two weeks ago that:

A little more than ten years ago, our government was employing interrogation methods that, as President Obama has said, any fair-minded person would believe were torture. At the same time, the test for any nation committed to this Convention and to the rule of law is not whether it ever makes mistakes, but whether and how it corrects them.

But what does correction look like? What obligations of repair follow from the acknowledgement that torture was routinely and consistently practiced by the United States? It is very clear that the Convention Against Torture (Article 14) as well as the collective jurisprudence of regional and international courts require that reparations follow from harm committed in breach of human rights treaty obligations. At the same hearings, Acting Legal Advisor to the State Department, Mary McLeod claimed that the United States “has taken important steps to ensure adherence to its legal obligations.” These include the creation and enforcement of laws and processes “to strengthen the safeguards against torture and cruel treatment” including Executive Order 13491. We are told that Army Field Manual Rules on Interrogation are now being fully enforced, and that there is great transparency in interrogation procedures, though with some ambiguity whether these procedures apply outside the territory of the United States. There is one resounding silence. In the context of torture committed at Guantanamo Bay and in other detention sites across the world not one word emerged from the delegation on what direct and specific obligations of reparation were owed to those persons who experienced torture at the hands of agents of the United States. This gap was directly addressed by Jens Modvig, the Country Rapporteur who asked the delegation to clarify:

… how many victims of torture have legally pursued and successfully obtained effective remedy for torture during U.S. custody within and outside U.S. territory?

In parallel, the US position on prosecution maintains a curious silence on the salience of accountability for torture post 9/11, though prosecutions in other contexts against international recognized torturers is touted as evidence of a commitment to broadly based accountability. In the midst of this resounding silence, my comments focus on what the Committee can and should expect of the United States with respect to reparations for Guantanamo Bay detainees and others ill-treated in black sites.

A starting point to addressing why the United States has an obligation of reparations is to recall why remedies exist for human rights violations under international treaty law. Reparations exist because they provide a concrete means to show a desire for non-repetition, to give redress to persons who have been harmed and to individually confirm meaningful condemnation in the aftermath of grievous harm to a human being. Recall that the ICJ has held that “the power to afford reparations is implicit in jurisdiction to hear a case, as a necessary concomitant to deciding disputes.” Simply put, reparations are necessary to repair the legal injury.

The practice of regional human rights bodies gives us useful insights into what might be expected of the United States for violation of the CAT. It is fair to say that the European Court of Human Rights (ECtHR) has historically taken a more conservative approach to the provision of remedies. The form of remedies for torture has generally followed the model of direct financial compensation to the individual who has been harmed, the payment of lawyers’ fees and the admonition not to breach again. More recently however, the Court is adopting a broader approach to remedies and now proactively indicates the measure a violating state should take to prevent torture recurring. So for example, in early cases like Soering v. United Kingdom (1989)—involving breach of the torture prohibition in a decision to extradite a German national facing the death penalty to the United States—neither pecuniary nor non-pecuniary damages were awarded to the victim. However costs and expenses of £26,782.80 were sustained. In later cases such as Ribitsch v. Austria (1991)—involving ill-treatment in Federal Police Authority custody in Vienna—the ECtHR specifically requested that similar violations do not occur in the future. In the past two decades a robust application of non-pecuniary damages both to applicants and their families can be observed in torture cases such as Kurt v. Turkey (1998).  Here non-pecuniary damages of £15,000 were awarded to the applicant’s son and £10,000 to the applicant; in Selmouni v. France (1999) 500,000 FRF were awarded in non-pecuniary damages for torture in police custody; and in Taz v. Turkey (2000) £20,000 were awarded in non-pecuniary damages following the enforced disappearance of the applicant’s son and £10,000 in respect of the applicant for torture in the context of disappearance. Recently, in the context of rendition cases from Poland (here), the Court has confirmed that Poland not only had to pay direct compensation to those rendered but the government was required to take proactive institutional action to protect them.

The  emerging scope of an expansive remedies approach for systematic violations of non-derogable rights is trenchantly illustrated by a series of cases in which the United Kingdom was found in violation of another non-derogable Convention right—the right to life (Article 2). Spanning almost two decades, these cases included deaths resulting from the exercise of force against members of paramilitary organizations (e.g. McCann v. United Kingdom (1995), Jordan v. United Kingdom (2001), McKerr and Others v United Kingdom (2001), and McCaughey and Grew v. United Kingdom (2013) and the Court determined that a range of institutional measures had to be taken in order to provide “Just Satisfaction” to those killed and their families.  These measures include positive and procedural obligations for the state and its agents that addressed planning, training, oversight, investigation, prosecution and civil remedies. The obvious precursor to these institutional remedies was individual compensation to all those whose families members were killed by the use of force violating the right to life provisions of the Convention.  The UK precedent and specifically the broad “package of measures” agreed by the Council of Europe to firmly address and remedy violations of the right to life occurring during the conflict in Northern Ireland provides one useful model to conceptualize what US reparations for torture practices post 9/11 might look like in practice.

The Inter-American Court (IACHR) has been exceedingly robust in its provision of reparations for torture, both with respect to the ability to order compensation and force other remedial measures. In Aloeboetoe et al. v. Suriname (1990) where multiple violations including violation of the right to humane treatment were sustained, the Court ordered collective reparations for a wide range of family and village members including individual payments to multiple families. The Court ordered the creation of two trust funds and the establishment of a foundation for the entire harmed community. Justices stipulated that this financial instrument should not be subject to national taxation rules. The Court ordered the state, as an act of reparation, to reopen the school located in the area where the harms took place with an obligation to staff it with teaching and administrative personnel.

It is important to be aware that the IACHR has adjudicated cases in which the individuals tortured have been alleged (by the state) to be members of paramilitary/non-state organizations. In these torture cases the Court has been reliably clear that the imputed political status of those subject to exceptional detention regimes is not a basis to justify torture. Remedies in these cases show that the state does not get deferential treatment simply because of the (alleged) context in which the harms occurred whether a situation of armed conflict or terrorism. Thus, for example, in Loayza Tamayo v. Peru (1998) the victim was an alleged collaborator of the subversive group “Shining Path.” She was detained for ten days and subjected to torture, cruel and degrading treatment. The reparations required by the Court included:

  1.  A sum equivalent to the salaries that the victim ceased to receive between the time she was detained and the date of the decision by the Court.
  2. A lump sum for the victim’s medical expenses during her incarceration.
  3. A sum corresponding to the travel expenses incurred by the next of kin to visit the victim while she was held in detention.
  4. An amount corresponding to the likely future medical expenses of the victim and her children.

As for compensatory damages Peru was ordered to pay a total of US$167,190.30 for the victim: $20,000 for the victim’s parents; $30,000 for the victim’s children; $18,000 for the victim’s brothers. Importantly, and relevant as comparison practice in relation to “correction” for torture practices were the institutional reform and measures required to prevent recurrence of violence by the IACHR. Peru was required to adopt all internal legal measures necessary to adapt Decree Laws 25,475 (Crime of Terrorism) and 25,659 (Crime of Treason) to conform to the ACHR. Peru was mandated to investigate the facts in the applicants’ case, and “identify and punish those responsible for those acts, and adopt all the necessary domestic legal measures to ensure that this obligation is discharged.” The Justices also required the State to take all measures necessary to re-instate Ms. Loayza-Tamayo in the teaching service of the University from which she had been fired. This reinstatement was also based on the understanding that the amount of her salaries and other benefits would be equal to the pay she was receiving for the teaching at the time she was detained, with appreciation to the date of the date of the IACHR’s decision. Down to the specifics, Peru was required to guarantee Loayza-Tamayo her full retirement benefits, including those owed for the period that followed her detention.

Another relevant case as we survey the international jurisprudence for torture is that of Cantoral Benavides Case v. Peru (2001). This case is valuable because the remedies given reflect the Court’s understanding of the long term medical needs of the Luis Alberto Cantoral Benavides following torture experienced in custody. Cantoral Benavides was a 20 year-old University biology student when he was arrested. He was detained for four years and after release he experienced ongoing physical and psychiatric complaints. Reparations to Cantoral Benavides included US $24,000 which was calculated to compensate the salary he would have received if not imprisoned. For medical treatment received in custody he was awarded US $1,000 and for future medical treatment the Court allocated US $10.000. In a distinctly egalitarian move, appreciating the parallel harms that are experienced by the families of those tortured, the Court found that Cantoral Benavides’ mother suffered and still evidenced symptoms physical and psychological pain originating from the imprisonment and situation of her son. In this instance of extended reparation the Court ordered Peru to pay US $1,500 for medical treatment. A parallel sum was also awarded to Cantoral Benavides’ brother for medical and psychological aid. Moral damages were paid to the primary victim, his mother, and his three brothers ($125,000).

In terms of institutional reparation the state was ordered to annul any domestic criminal, administrative or judicial records against the victim. Notably the Court ordered that the merits judgment of the Court be published in a national legal journal. The state was required to make public amends to the victim including providing a scholarship for graduate studies with a monthly fee for living expenses. All medical costs for the victim’s mother were to be paid by the state.

These IACHR cases are illustrative of a broader trend to “transformative” reparations where serious human rights have been engaged by the state. Increasingly, it is simply insufficient to compensate the victim financially when non-derogable human rights are violated (though that is an essential first step of repair). Rather, regional human courts have recognized that the imprint of the harm of torture is life-long, life-changing, and effects the lives of families as well as of the persons whose bodies and integrity have been violated. In this context, the response of the United States to the probing of the UN Committee on remedies seems woefully inadequate. While having provided the Committee with the names of 33 individuals who had filed claims against the Department of Defense, no substantive information was provided on the status of those cases. Despite questions asked by the Committee, the US delegation neatly avoided giving information on whether any of those individual had been provided non-judicial remedies, and on the numbers of lawsuits involving torture or serious ill-treatment that had failed to proceed on the basis of non-exhaustion of the internal grievance system. Despite the apparent formal assurances of Robin Jacobson, Associate Deputy Attorney General, there is no evidence that the United States has taken responsibility to implement remedies for acknowledged torture. He stated:

U.S. law provides a wide range of civil remedies for seeking redress in cases of torture. These include injunctions, compensatory damages, punitive damages, and declaratory relief. In addition, the U.S. Congress has authorized the federal government to bring civil actions to enjoin acts or patterns of conduct that violate constitutional rights, including those that
would amount to torture. At the federal level, the principal avenues of individual redress are administrative tort claims and civil litigation.
Common law tort actions for assault, battery, wrongful death, civil actions for violations of federally protected civil rights, suits based on federal constitutional rights. On the state level, all of our states provide for civil tort suits to be brought against state officials and many permit damages for violations of state constitutional rights.

This formal litany of effectively unavailable rights to tortured Guantanamo Bay detainees and others operates as a secondary layer of Convention violation. Namely, the violation of the right to an effective remedy for torture. Words in fact, may be cheap. As Gabor Rona has noted here, there is little new about the acknowledgement of extraterritoriality official by this US delegation, despite the hype. Harold Koh among other commentators here, has applauded the honesty and increased transparency of the acknowledgments made before the Committee (a cheer for the “unequivocal yes”). On that matter, I am less persuaded. There is a grave danger that acknowledgment may blur the ongoing, daily violations of detainees’ human rights.  It may also cloud and allow us to forget that there are a host of other obligations that follow from naming the fact that torture has taken place. Lest we forget, the United States has a direct obligation to each individual tortured and subject to cruel treatment at Guantanamo Bay, and that obligation is one of repair, remedy and restitution. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).