The U.S. government’s public pronouncement that the Convention Against Torture (CAT) applies beyond U.S. borders and in situations of armed conflict—its unequivocal “yes” that torture is prohibited as a matter of law anytime and anywhere—turns an important historical page. In her opening statement before the Committee Against Torture and in response to questions posed by the Committee, Acting State Department Legal Adviser Mary McLeod clarified the U.S. position by stating:
[W]here the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party, and more specifically to all places that the State Party controls as a governmental authority. (emphasis added).
These places, McLeod added, currently include the Naval Station at Guantánamo Bay and U.S.-registered ships and aircraft. She further clarified that Convention Against Torture obligations to prevent torture and cruel, inhuman, or degrading treatment or punishment (CIDT) (Arts. 2 and 16) “remain applicable in times of armed conflict and are reinforced by complementary prohibitions in the law of armed conflict.”
As Harold Koh and Sarah Cleveland have explained, these statements have realigned the U.S. with its pre-Bush administration position, as articulated in 1990 by Legal Adviser Abraham Sofaer in his testimony before the Senate and in President Ronald Reagan’s letter of transmittal, and in 2000 during then-Assistant Secretary Harold Koh’s presentation to the Committee Against Torture. While adding detail to its evolving views, the U.S. also affirmatively rejected the claim that, under lex specialis, international humanitarian law altogether displaces human rights law in situations of armed conflict. In so doing, the U.S. officially repudiated the Bush administration position, which had called into question both the CAT’s extraterritorial reach and its application in armed conflict. This is a critical victory for the United States in standing for humane treatment and human rights, hopefully a sturdy nail in the coffin of Bush administration positions that evoked “intense domestic and international criticism,” as then-Legal Adviser John Bellinger acknowledged in opposing them.
Admittedly, some, such as Gabor Rona and Human Rights Watch, are not as persuaded that a real shift in the U.S. position has occurred. Rona, for example, critiques the new U.S. view as a consolidation of its old position “reject[ing] the majority ‘effective control’ view.” Yet the U.S. did no such thing. What it rejected was a strictly territorial interpretation of the CAT, and the view that international humanitarian law completely displaces human rights law, including the CAT, in the context of armed conflict.
State Department Counselor on International Law Catherine Amirfar also noted in response to Committee questions that international and domestic law already require that “[a]ny individual detained in any armed conflict who is in the custody or under the effective control of the United States, or detained within a facility owned, operated, or controlled by the United States, in all circumstances must be treated humanely and must not be tortured or subjected to cruel, inhuman, or degrading treatment or punishment.” In determining that the obligations to prevent torture and CIDT under articles 2 and 16 apply at Guantánamo Bay and on U.S.-registered ships and aircraft, the U.S. established a floor for the scope of those affirmative obligations, not a ceiling on the duty not to commit torture or CIDT, which the U.S. firmly acknowledged applies “at all times and in all places.”
Rona also asserts that the U.S. government “doesn’t buy” that CIDT is already categorically prohibited under international law, irrespective of CAT article 16. Yet Counselor Amirfar was exceedingly clear on this point, stating that “cruel, inhuman, or degrading treatment or punishment is absolutely prohibited at all times and in all places” in accordance with “U.S. domestic law, treaties, and customary international law.” She also separately noted that the article 16 obligation to prevent CIDT applies “beyond the sovereign territory of the United States to any territory under its jurisdiction” and that the U.S. reservation to “ensure that existing U.S. Constitutional standards would satisfy U.S. obligations under that article . . . . does not introduce any limitation on the geographic applicability of that article.”
The key distinction in Counselor Amirfar’s comments is rooted in a core purpose of the Convention: to make existing prohibitions of torture and CIDT “more effective,” as stated in the Convention’s Preamble. These prohibitions already existed prior to the CAT. Article 16, viewed through this lens, is intended to address situations where States have an affirmative duty to “undertake to prevent” CIDT, i.e. to take affirmative legislative, adjudicative, and administrative measures for prevention purposes, not to define the outer boundaries of a State’s preexisting negative obligation to refrain from committing acts of CIDT.
In addressing a question regarding the geographic scope of the Convention, Counselor Amirfar explained that the absolute prohibitions on torture and CIDT
are legal prohibitions, based on U.S. domestic law, treaties, and customary international law. For example, the prohibition against torture is customary international law binding on all nations everywhere, at all times. Articles 2 and 16 of this Convention require prevention of both torture and CIDT in territory under U.S. jurisdiction. (emphasis added).
Counselor Amirfar’s explicit reference to “customary international law” is particularly significant, because it lays to rest speculation over whether the U.S. might view customary international law prohibitions as having geographic constraints. Her statement further underscores the comprehensive geographic scope of the prohibitions on torture and cruel treatment, under international and U.S. domestic law, and in and out of armed conflict.
Counselor Amirfar then stated that she would address “the separate question under the Convention of the geographic reach of the articles specifically referring to territory under State’s jurisdiction.” (emphasis added). These statements, together with the recognition that Articles 2 and 16 address “prevention” of torture and CIDT in territory under U.S. jurisdiction, demonstrate that those particular articles speak to the positive obligation to prevent mistreatment in areas that a state affirmatively controls, not to the fundamental and geographically comprehensive prohibitions on mistreatment.
These positions also affirm, as Sarah Cleveland has highlighted, that the Convention includes obligations that are universally obligatory, while others are cabined to “any territory under [a State Party’s] jurisdiction.” This jurisdictional distinction makes sense, because it limits State Party obligations to only those actions and contexts where a government has the ability to exercise government authority, such as preventing acts of torture (Art. 2(1)) and CIDT (Art. 16(1)) and taking an offender into custody (Art. 6(1)). The U.S. has now recommitted to this important distinction.
In interpreting what “any territory under [a State Party’s] jurisdiction means, the Committee Against Torture, unsurprisingly, would go further than the U.S. position, stating in the context of Article 2(1), that:
‘any territory’ 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. The reference to ‘any territory’ in article 2, like that in articles 5, 11, 12, 13 and 16, refers to prohibited acts committed not only on board a ship or aircraft registered by a State party, but also during military occupation or peacekeeping operations and in such places as embassies, military bases, detention facilities, or other areas over which a State exercises factual or effective control. The Committee notes that this interpretation reinforces article 5, paragraph 1 (b), which requires that a State party must take measures to exercise jurisdiction ‘when the alleged offender is a national of the State.’ The Committee considers that the scope of ‘territory’ under article 2 must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention.
Although much room exists between the Committee’s view and the new U.S. position, observers may not fully appreciate how large a leap the U.S. took, not just with respect to its own position, but as a global leader. Of the handful of U.S. partners and other countries that have reported to the Committee Against Torture on extraterritoriality and applicability during armed conflict, surprisingly few have been as unequivocal as the United States was last week.
In its 2007 appearance before the Committee Against Torture, Italy affirmed that its international forces must “comply with the Convention, ‘under any circumstances.’” (CAT/C/ITA/Q/4/Rev.1/Add.1) (emphasis added). Yet most of the relevant State Party statements on record before the Committee Against Torture have been oblique at best. The United Kingdom, during its 2004 appearance before the Committee, made clear that it complied with “the prohibitions” under the CAT in Iraq and Afghanistan, though it conceded that it was not fully in compliance with the CAT’s affirmative obligations “throughout U.K. areas of responsibility.” The UK stated:
[W]hile we are happy to say that UK personnel serving in Iraq and Afghanistan comply with the prohibitions set out in the Convention, we are not claiming to have established full compliance with the Convention throughout the UK areas of responsibility in these countries. Nevertheless, as a matter of policy—as I have already said—we are doing our utmost to promote human rights in these countries. U.N. Comm. Against Torture, Opening Statement of the United Kingdom of Great Britain & Northern Ireland, at 17-18, ¶ 91 (Nov. 17-18, 2004).
Specifically, the UK rejected the notion that the CAT obligations that apply to “any territory under its jurisdiction” extended to its troops stationed in Afghanistan and Iraq, even if operating with effective control over an area. To the contrary, the UK asserted “those parts of the Convention which are applicable only in respect of territory under the jurisdiction of the state party,” “cannot be applicable in relation to actions of the UK in Afghanistan or Iraq.” (emphasis added).
In response, the Committee Against Torture emphasized that “all territories under the jurisdiction of a State party . . . . includes all areas under the de facto effective control of the State party’s authorities.” (CAT/C/CR/33/3). Nonetheless, the UK reiterated its position in its 2012 appearance before the Committee, stating that it “does not accept that where military forces operate overseas,” as in Afghanistan and Iraq, “it is exercising legal or de facto effective control.” Because the UK is not “in a position to take ‘effective legislative, administrative, judicial or other measures to prevent acts of torture’ in the territory of those countries,” it explained, “those parts of the Convention which are applicable only in respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of the UK in Afghanistan or Iraq.”
France also dodged the question of the CAT’s extraterritorial reach in its 2005 appearance, stating only that “in territories outside the jurisdiction of the State party where its armed forces are deployed . . . military regulations prohibit the use of torture,” (CAT/C/FRA/4-6) without addressing whether the CAT itself constrained such actions. Canada resisted extraterritorial application in its 2010 report to the Committee, asserting that a “state may not actually exercise jurisdiction over the territory of another state without the latter’s consent,” except, for example, when it is an occupying power. Israel, perhaps not surprisingly, has been among the most fervent defenders of a strictly territorial interpretation of CAT obligations subject to “any territory under [a State Party’s] jurisdiction.” For instance, in its 2009 reply to an issue raised by the Committee regarding conformance with article 16 in the context of its administrative detention in the Occupied Territories, Israel explained that its “position on the inapplicability of CAT beyond its territory has been presented at length to the Committee . . . and remains unchanged.” (CAT/C/ISR/Q/4) (emphasis added).
Notwithstanding these statements, silence may speak louder than words. Out of the 156 countries that have ratified the CAT to date, only a small proportion have been asked by the Committee Against Torture to present their positions on the Convention’s geographic scope and operation in armed conflict. In fact, many states, like Italy, are subject to the European Convention on Human Rights and thus have other torture and humane treatment obligations, both positive and negative, that apply extraterritorially.
The treaty text and structure, purpose, and negotiating history further support the Committee’s view that “any territory under [a State Party’s] jurisdiction” to cover circumstances over which a state exercises effective control. And at a minimum, as then-Legal Adviser Harold Koh explained in his 90-page memo on the CAT’s geographic scope and applicability during armed conflict, “any territory under [a State Party’s] jurisdiction” cannot be understood as strictly territorial, because:
(1) This phrase was intended to be broader than the mere sovereign territory of a state. (2) It was understood to include State-flagged ships and aircraft. (3) It was understood to apply to situations of de facto control, including situations of occupation, not merely de jure control. (4) The phrase was included to limit certain state obligations, apparently to ensure that States would not have certain affirmative obligations with respect to their citizens abroad, over whom other States had primary jurisdiction. (5) Prior to 2005, the United States consistently understood ‘any territory under its jurisdiction’ as including, at a minimum, the ‘special maritime and territorial jurisdiction’ (“SMTJ”) and ‘special aircraft jurisdiction’ of the United States.
Critical, now, will be the U.S. government’s fleshing out of its new position, to ensure that black sites and other areas where the U.S. may be tempted to reject the notion that it exercises governmental authority do not narrow the U.S.’s affirmative obligations under the CAT to prevent, investigate, and, remedy acts of torture and CIDT. While room for improvement remains, the U.S. has taken a great step forward in ensuring the Convention’s aim of “achieving a more effective implementation” of existing prohibitions of torture and CIDT. But that goal cannot be realized alone.
With luck, this important step taken by the U.S. will help convince other State Parties to similarly acknowledge affirmative Convention obligations beyond their territorial borders, and to recognize, like the U.S., that the fundamental prohibitions against torture and cruel treatment apply “at all times, and in all places.”