[Editor’s Note: Just Security is holding a “mini forum” on the extraterritorial application of human rights treaties in light of the release of two State Department memos and the US appearance before the UN Human Rights Committee the week of March 10, 2014. This series includes posts from Jennifer DaskalDaphne EviatarRyan GoodmanJonathan HorowitzMarko Milanovic, and Beth Van Schaack, and Letters to the Editor from Manfred Nowak and Martin Scheinin.]

As an extension of the Just Security “mini forum” on the extraterritorial application of human rights treaties, I wanted to draw attention to what Koh’s January 2013 memo said about the issue of non-refoulement—the rule that no state shall expel, return (“refouler”) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.

In the past, the United States has claimed that the non-refoulement obligation in Article 3 of the Convention against Torture (CAT) does not apply extraterritorially or in situations of armed conflict. Koh’s legal memo on the CAT is nothing less than a frontal assault on these two legal interpretations, which he undertakes in 38 pages of his 90-page memo that is dense with legal history and analysis.

Koh is not shy in stating where he thinks previous administrations got it wrong, and while he recognizes the United States commitment to Article 3 as a matter of policy, he says this “papers over” the reality that a legal obligation exists.

The memo’s section on Article 3 is particularly important because it helps to fill a gap in the legal protection of people detained in the context on both international and non-international armed conflicts. Under the law of international armed conflict, the principle of non-refoulement is found in Article 12 GC III and Article 45 GC IV – but these articles, though important, have limitations. They apply only to certain groups of persons and they had the original intention of regulating transfers amongst allies, as I’ve discuss here.  As for non-international armed conflicts, the principle of non-refoulement in the applicable LOAC could be said to be altogether absent, although some look to Article 5(4) of Protocol II and Common Article 1 to the Geneva Conventions to argue for an embedded rule that a state must not send a detainee to another state where there is a risk of torture or other prohibited treatment.

Given these shortcomings, the application of CAT in extraterritorial armed conflict makes a substantive and, in my view needed, legal contribution to the humane treatment obligations that protect conflict-related detainees.

Koh does not, however, leave his argument only to the law. In one of his more forceful passages, he states that his CAT interpretations are also in the country’s best interest. (He also makes this argument in his ICCPR memo.):

Our repeated insistence that, on the one hand, the United States has no legal obligation not to return people to torture from beyond our borders, and on the other hand, our firm policy makes the absence of a legal obligation irrelevant, is increasingly untenable as a legal matter, and does not serve U.S. interests. The denial of the legal obligation invites suspicion and distrust from our audiences, domestic and foreign. It also invites emulation from States less scrupulous about compliance, and thus risks undermining the effectiveness of the global regime of protection the CAT sought to establish. Indeed, the claimed policy commitment simply papers over the reality that the policy is substituting for what is, in fact, a legal obligation. In the absence of the claimed policy, it would be entirely untenable, legally and politically, for the United States to claim that it is legally entitled to return someone to torture.

I agree with Koh on all these points. I would add, based on my own experience working on non-refoulement issues in Afghanistan, that it was in large part because the United States regarded its non-refoulement responsibilities as a matter of policy rather than law, that it failed on several occasions to ensure people it detained were not handed over to Afghan authorities, who then subjected those individuals to torture (see here).  The most obvious illustration of this could be seen by comparing what at times has been the United States’ slow, weak, and incomplete non-refoulement policy to the more robust actions taken by some of its NATO allies that regarded non-refoulement responsibilities as legal obligations (see here and here).

I’m of course interested to see what impact Koh’s memo will have on the administration’s interpretation of its CAT obligations. I’m equally interested to think about how any newly recognized obligations might be implemented—especially with regard to the transfer of people who the United States detains in large numbers, as it did in places such as Bagram and at the battlefield level.

For example, the Human Rights Committee and the Committee against Torture have held that a person transferred from one state to another must have access to an individualized procedure prior to transfer that allows for an evaluation of the risk of post-transfer mistreatment. The Committee against Torture, for example, held that “the absence of any avenue of judicial or independent administrative review of the Government’s decision to expel the complainant [did] not meet the procedural obligation to provide for effective, independent and impartial review required by article 3 of the Convention.”

This may appear to some to place too onerous a task on a government engaged in an armed conflict. But U.S. personnel part of the United Nations forces in the Korean War conducted individualized transfer reviews (though it was done through a very cursory and draconian procedure); and if we look to the European Court of Human Rights for direction, the Court has shown a willingness to take into account the practical limitations that an armed conflict puts on a state and allows a state to vary its conduct depending on the circumstances.

Finally, I’m not sure where Koh’s two memos leave the principle of non-refoulement with respect to cruel, inhuman or degrading treatment.  While CIDT is not explicitly covered by the text of Article 3, there is consistent human rights case law that CIDT is covered in an embedded non-refoulement principle of the ICCPR (as well as the European Convention on Human Rights).  If, however, the non-refoulement principle is one that emanates from a “positive obligation,” Koh’s ICCPR memo would seem to imply that the United States is not bound to this when operating extraterritorially (see Marko Milanovic’s take on the “positive obligations” issue here).