State Responsibility and Reparation for Torture as a Violation of IHL

The Senate Select Committee on Intelligence (SSCI) yesterday released the redacted executive summary of its report on the CIA’s rendition, detention and interrogation program. It describes acts of torture against detainees held in the United States’ armed conflict against the Taliban and al Qaeda, such as water-boarding, stress positions, sleep deprivation, confinement in a box, slapping and slamming into walls, and other appalling techniques.

These revelations will no doubt fuel the debate of whether the U.S. should directly grant CIA torture victims any reparation for their ill-treatment. This debate should be framed with the knowledge that there is some precedent in the United States of recognizing victims’ right to obtain various forms of reparations from a State directly, in any type of armed conflict. Reparations, which need not be limited to monetary compensation, serve not only to uphold the rule of law; they also allow a country to come to terms with its past.

Under international law, acts of torture carried out by the CIA in armed conflict trigger the U.S. government’s responsibility to make reparation for these serious violations of international humanitarian law (IHL). Under the Convention Against Torture (CAT), Article 14 requires States to provide victims of torture an enforceable right to compensation. However, before the UN Committee against Torture last month, the U.S. took the position that this particular obligation under the CAT did not apply in situations of armed conflict, on the grounds that IHL does not provide individual compensation for victims. The U.S said:

“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 lawsuits.”

As Sarah Cleveland recently explained, one “may reasonably question the United States’ claim of a conflict between IHL and the right to enforceable compensation under Article 14.” Regardless of the applicability of Article 14 specifically, or of remedies under human rights law in general, this blog post explores evidence of the United States’ recognition of victims’ right to obtain various forms of direct reparation in armed conflict.  

The prohibition of torture under IHL

In international armed conflict, torture is a grave breach under all four Geneva Conventions of 1949. In non-international armed conflict, torture is a violation of common article 3 of the Geneva Conventions. It is a war crime under the Statute of the International Criminal Court (ICC), Rule 156 of the International Committee of the Red Cross’s (ICRC) Study on Customary IHL, and under the U.S. War Crimes Act, in any type of conflict. 

State Responsibility

A State commits an internationally wrongful act when the conduct is attributable to it and constitutes a breach of an international obligation. The International Law Commission’s Articles on Responsibility of States for International Wrongful Acts (Articles on State Responsibility) note that “[e]very internationally wrongful act of a State entails the international responsibility of that State.” The International Court of Justice has recognized this principle in a number of judgments, including in the Gabcíkovo-Nagymaros Project, in which it stated that it is “well established that, when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect.”

Article 3 of the 1907 Hague Convention (IV) and Article 91 of Additional Protocol I (AP I) to the Geneva Conventions both apply this general rule to violations of IHL in international armed conflict. Referring to “grave breaches,” U.S. Army Field Manual No. 27-10 on the Law of Land Warfare reproduces a provision found in Articles 51, 52, 131 and 148 of the First, Second, Third and Fourth Geneva Conventions respectively: “No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.” Consistent with this, in a 1992 report to Congress on the conduct of the Persian Gulf War, the U.S. Department of Defense wrote: “[…] no nation has the authority to absolve itself or any other nation party to those treaties of any liability incurred by the commission of a Grave Breach.”

The ICRC’s Study on Customary IHL has found that the same rule applies to all IHL violations as a matter of customary law in both international and non-international armed conflict: Rule 149 says a State is responsible for violations of IHL attributable to it, including violations committed by its organs, and violations committed by persons or entities it empowered to exercise elements of governmental authority.

Reparations

State responsibility brings a legal duty to make reparations for violations. The general rule requiring reparation for violations of international law was stated in the Permanent Court of International Justice’s 1928 decision in the Chorzow Factory case (and has since been applied in a number of other cases): “It is a principle of international law, and even a general conception of the law, that any breach of an engagement involves an obligation to make reparation. … Reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.” Article 31 of the Articles on State Responsibility likewise recognizes that “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”

Rule 150 of the ICRC’s Study on Customary IHL recognizes this rule as applicable in any type of armed conflict. Furthermore, in 2005 the UN General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines). These principles recognize a duty to provide effective remedies to victims of serious violations of IHL, including reparation for harm suffered.

Reparations can take different forms. According to Article 34 of the Articles on State Responsibility, “full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation or satisfaction, either singly or in combination.” The 2005 Basic Principles and Guidelines distinguish five forms of reparation: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

On compensation specifically, Article 3 of the 1907 Hague Convention (IV) and Article 91 of AP I provide that a party who commits violations shall be liable to pay compensation if the case demands, and the Commentary to Article 91 AP I explains that compensation will be due if it is not possible to have restitution in kind or to restore the situation to what it was before the violation. It is usually a sum of money proportional to the loss suffered, but can also take the form of services. 

Direct reparations to victims in various forms

Traditionally, reparations have been made in international armed conflict by one State to another, however more and more countries acknowledge the right of individuals to seek reparations from a State directly, in any type of armed conflict. Article 33(2) of the Articles on State Responsibility heads in this direction by stating that Part II of this body of law “is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.” Article 75 of the Statute of the ICC foresees direct reparations to victims, while subparagraph 75(6) implies an individual right to reparation under other areas of international law: “Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.”

Direct compensation

Some examples of U.S. readiness to recognize direct compensation to victims in armed conflict include the 1988 Law on Restitution for World War II Internment of Japanese-Americans and Aleuts (the 1988 Law on Restitution), which was adopted in order to compensate victims. In 2001, a Concurrent Resolution put before Congress by the House of Representatives, and later referred to the Subcommittee on East Asia and the Pacific, called on Japan to pay reparations to victims of violations committed against “comfort women.” In 2004, U.S. Secretary of Defense Donald Rumsfeld testified before the House Armed Services Committee concerning detainee abuse at Abu Ghraib in Iraq: “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military.” As a matter of policy, the Department of Defense has been in the practice of granting solatia and condolence payments to Iraqi and Afghan nationals who are killed, injured, or suffer property damage as a result of U.S. or coalition forces’ actions during combat.

Claiming compensation before U.S. courts, however, has posed a challenge for a variety of reasons, including the lack of a judicially enforceable remedy, the military, national security or foreign affairs nature of the question, or reasons of sovereign or qualified immunity or state secrets.

Khaled El Masri sought remedies from members of the CIA and private corporations as a result of El Masri’s extraordinary rendition to Afghanistan and detention in a CIA black site there. The District Court for the Eastern District of Virginia dismissed the claim (and the Court of Appeals affirmed the decision) based on the state secrets doctrine. The Court did add, however, that “it is worth noting that putting aside all the legal issues, if El-Masri’s allegations are true or essentially true, then all fair-minded people … must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.” (In 2012, the European Court of Human Rights ordered the former Yugoslav Republic of Macedonia to pay El Masri compensation for torture and other human rights violations to which he was subjected.)

Maher Arar also sought damages for his extraordinary rendition to torture in Syria. The Court of Appeals for the Second Circuit held that “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief.” It added that “[o]nce Congress has performed this task, then the courts in a proper case will be able to review the statute and provide judicial oversight.” (Upon returning to Canada, Arar received compensation from the Canadian government for its role in his ill-treatment.)

Other forms of direct reparation

Forms of direct reparation other than compensation have also been recognized. In its second periodic report to the CAT submitted in 2005, the U.S. government held the view that “in addition to monetary compensation, States should take steps to make available other forms of remedial benefits to victims of torture, including medical and psychiatric treatment as well as social and legal services.” The above-mentioned 1988 Law on Restitution foresaw additional measures, including an apology on behalf of the people of the U.S. and the establishment of an education fund to inform the public and prevent a recurrence of similar events. The 2001 draft Congressional Resolution also called upon the government of Japan to apologize for the sexual enslavement of “comfort women.” Following Maher Arar’s release, some U.S. lawmakers apologized for his arrest, rendition and torture at the hands of Syrian officials. (Arar also received an apology from the Canadian government.)

There is little doubt that a State is responsible for acts of torture committed by its agents in any type of armed conflict. Moreover, direct reparation for violations of IHL has been gaining recognition in the U.S. While it can take various forms and be implemented through various mechanisms, reparation for acts of torture committed during the CIA’s detention and interrogation program would play an important role in upholding the law, deterring future violations, and coming to terms with the past, which are all necessary before it becomes possible to honor President Obama’s commitment to looking “forward, as opposed to looking backwards.” 

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About the Author(s)

Nathalie Weizmann

Senior Legal Officer with the United Nations Office for the Coordination of Humanitarian Affairs