Torture Should Be Accounted For

Torture is among the most heinous crimes known to humankind. It should never be excused, it should never go unpunished. It is not about who the tortured are, or what the tortured know. It is not about what they have done, what they believe, or whether they would do the same. It is about who we are, and how human beings should be treated. It is about our humanity, that is all.

Thursday, April 10, 2008

International Law and 'Victor's Justice'

The Torture Council will Listen to His Master's Voice

Almost from the moment of the signing of the Geneva Conventions in 1863 there has been a problem with enforcement, and people have accused various international tribunals of victor's justice. This is remedied within nations by an independent judiciary. People who have been following the recent Emergency and elections in Pakistan are aware of how centrally important this can be to a nation, people who were aware of the transitions leading to the end of the Soviet Union were aware of the efforts made there, which were thwarted in large part by its sudden collapse. In the case of international law, an independent judiciary is embodied by the establishment of a permanent, independent, international criminal court.

Henri Dunant and Gustav Moyner, the convenors of the original Geneva conventions and the founders of the Red Cross, were not unaware of this problem. Christopher Keith Hall documents that although Moyner was originally opposed to such a court, by 1872, with the outbreak of the Franco-Prussian War, he understood its need, and wrote a document outlining how he thought it should be constructed. In essence, it prevents both an inability to enforce international law, and accusations of victor's justice.

These problems often lead American lawyers to downgrade the importance of international law. You can find discussions to that effect lacing the current online talk about the recent Torture Memo and Torture Council (how else can you describe Condi Rice's NSC principals meetings?) disclosures, for instance, here but should they? The court exists, it was created by the Rome Statute, and has more than a little international adherence. It is also true that the United States has a schizophrenic attitude towards its authority, and this is quite possibly an entry point for it to have an effect on American lawmakers.

In a well known move, the Bush administration withdrew from the ICC on May 6, 2002. To put this in perspective, the papers are currently talking about the torture memo, requested by William J. Haynes, and written by John Yoo in March 2003. The principals meetings, as exposed by ABC News last night, were convened after Abu Zubaydah proved uncooperative, he was captured in March, 2002. There is a Bybee memo signed August 1, 2002 that delineates techniques that may be "cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A's proscription against torture." Section 2340 is the implementation of the Convention Against Torture, known as the Torture Act. And there is a Yoo/Delahunty memo and a Bybee memo, both from January 2002, arguing against providing prisoners in Afghanistan the protections of the Geneva Conventions, including the common Article 3 protections (see here, p. 10). Given the timeline in the ABC piece, it is likely the Torture Council met after August 1, but who knows? Obviously ending support for Geneva began on or before January 9, less than 4 months after September 11, 2001. Support for Geneva is even worse since the passage of the Military Commissions Act of 2006, which forbids courts in the U.S. from using it as a legal authority.

That makes it pretty definitive, no? But wait! Charles Taylor of Liberia was remanded to the ICC by the request of the United Nations Security Council on March 30, 2006. The United States is trying those few Guantanamo prisoners that it is bothering to bring to trial charging them with war crimes, that is, violations of international law. The United States similarly disparages the United Nations, most famously when John Bolton implied he wouldn't be adverse to destroying the place, but used U.N. Security Council resolutions as its justification for invading Iraq. It would be a mistake to believe that the members of the Torture Council, or their boss, don't care about opinions from the ICC. Even if they don't, other nations do. 195 countries are required to apprehend those accused of war crimes. It only takes one per criminal.

And following the logic I wrote about earlier, the MCA itself is, in many respects, a violation of international law, since it attempts to change our ratification status, and since it attempts to confer immunity on torturers, and it attempts to restrict the applicability of common Article 3. Beyond that, everyone is quoting Phillippe Sands at the same time they talk of the inapplicability of international law, because they all know about the 'tap on the shoulder', as he put it. He (actually a prosecutor he interviewed) mentioned a trip wire being touched by the passage of the MCA. The trip wire in question is in the Rome Statute. It's the condition that allows the International Criminal Court to intervene: evidence that the home country will not prosecute.

International humanitarian law obviously matters a great deal to those that violate it. It would therefore likewise be a mistake to believe that the United States Congress would ignore an opinion from the ICC, especially if they found themselves implicated. History would not judge them kindly, either.


The Associated Press has now corroborated the ABC News story on the NSC Principals meetings. It is interesting that, in interviewing the "former senior intelligence official" the timeline shifts backwards a bit. I had surmised that the meetings came after the Bybee memo of August 1. Zubaydah was captured in March. The official is quoted by AP as follows: "If you looked at the timing of the meetings and the memos you'd see a correlation," the former intelligence official said. Those who attended the dozens of meetings agreed that "there'd need to be a legal opinion on the legality of these tactics" before using them on al-Qaida detainees, the former official said. That certainly looks like evidence of meetings about techniques in advance of a legal basis for the CIA, which was provided in the August 1 memo. We're moving back towards March 29, 2002. Perhaps we'll move further.


Jim White said...

Although the Bush administration withdrew from the International Criminal Court in 2002, their opposition to it came before September 11, 2001 and the subsequent wars. From the New York Times on July 14, 2001:

The European Union, whose 15 members support a permanent International Criminal Court, fears that the Bush administration's active opposition could undermine a campaign to get enough ratifications over the next year to get the tribunal up and running, diplomats say.

The court, created by a treaty adopted three years ago in Rome, must be ratified by 60 national legislatures before it can operate. It would be the first permanent international tribunal to deal with crimes like genocide, war crimes and crimes against humanity. So far, 36 of the 139 nations that signed the treaty have ratified it.

Under the Clinton administration, the United States signed the treaty last Dec. 31, the last possible day to sign without ratifying at the same time. The Bush administration has vowed never to send the treaty to the Senate for ratification, and has asked the United Nations for legal advice on how to withdraw its signature.


ondelette said...

Makes you wonder if, just like the FISA abuses, this one wasn't planned well before September 11.

I found as much documentation as I could, but I suspect there are memos that are earlier than what has been released.

I have noticed that they don't feel bound by any treaty signed by a Democratic administration. They never cite the 1977 protocols, some of the memos act as if it had never been signed, ratified, or implemented, they never cite the CATCIDT. I don't think it's an accident. It's almost as if they don't believe any intervening Democrats were legitimate presidents.

Jim White said...

Note that the AP article you link in the update mentions that "The officials also took care to insulate President Bush from a series of meetings where CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved."

Yet, we now have this memo (, signed by Bush on February 7, 2002 and referencing "our recent extensive discussions regarding the status of al Qaeda and Taliban detainees" showing very clearly that Bush took part in the discussions and signed off on the plans for how the detainees were treated.

ondelette said...

Jim, I believe he is accepting the conclusions of either Yoo/Delahunty or Bybee, both written in January 2002, that the detainees aren't entitled to Geneva protections. Notice how he specifically takes them out of the Article 3 protections based on this being a conflict not of international character. That's what I meant by ignoring the 1977 Protocols which specifically apply common Article 3 to conflicts not of international character.

Anonymous said...

It's astonishing to me that these things always end up being documented by the very people doing it. They keep records of their meetings when they plot out these atrocities. Ashcroft was the only one among them to think they might not want this stuff documented for future generations to look at. The banality of evil: Satan probably has a whole recording system in hell, keeping excellent records of all this meetings too.

Jkalos (Jim Goetsch)

C. Mosby said...


I suspect that the records are deemed necessary, despite the obvious implications, because of the overarching need for internal CYA.

These snakes simply don't trust each other. Their intense need to protect themselves (buttressed by their naive assumption that external leaks are unlikely) against internal backstabbing inevitably prevails. Some of the most intriguing games are played by the best practitioners of the art in terms of sabotaging each other. Colin Powell, among others, was hopelessly overmatched in this game by Darth Vader.

If you were a snake, would you trust another snake? It's the same syndrome that eventually causes the unraveling of the Enrons.