Torture Under International Law: Setting A Dangerous Precedent
Matthew Kalyk explores the long-term implications of failing to prosecute Bush Administration officials for torture.
On 16 April 2009, four U.S. Justice Department memos written in 2002 were released to the public. The memos detail the legal reasoning Bush Administration lawyers relied upon to justify the use of interrogation techniques against detainees. The techniques range from stress positions (such as standing for four hours) and twenty-eight hour interrogations to waterboarding and deception relating to the safety of family members. The memos contribute to a growing body of evidence suggesting that senior members of the Bush Administration authorised or acquiesced to torture, a crime under international law.
Ben Saul, Director of the Sydney Centre for International Law, points out that whether or not the people responsible for authorising these acts will be subject to investigation is largely a decision for the Obama Administration. If the U.S. were a signatory to the Rome Statute, the treaty establishing the International Criminal Court (ICC), the ICC would have jurisdiction over Bush Administration officials. But it is not. The UN Security Council has the power to refer a matter to the ICC, as has been done in the case of Omar Al-Bashir of Sudan; however, this is highly unlikely since the U.S. is a permanent, veto-wielding member of the Council.
If an alleged perpetrator were to leave U.S. soil, another state could legally prosecute that person. However, many states would be reluctant take such action due to its detrimental effect on cordial relations with the world’s sole remaining superpower.
So what has U.S. President Barack Obama done? After the release of the four memos, Obama remarked that, while the acts authorised in the memos represented “a dark and painful chapter in [American] history”, there would be no investigation into the agents and soldiers who carried out the approved measures. What Obama did not say was whether there would be investigations into senior officials of the Bush Administration who authorised these acts, including legal counsel such as Douglas Feith, John Yoo and Jay Bybee, as well as former Vice-President Dick Cheney and former Secretary of State Donald Rumsfeld.
Earlier in 2009, when Obama was asked by ABC television whether he would appoint an investigator to consider the potential prosecution of certain Bush officials for authorising torture, his response was measured:
“We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions and so forth. And obviously we’re going to look at past practices and I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards … I don’t want [CIA agents] to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up.”
Obama’s response dodges the real issue. The question addressed the prosecution of senior Bush officials, yet Obama focused on the effect any trial would have on U.S. security forces – that is, the everyday CIA Agent protecting America. This is, however, irrelevant. Indeed, Obama has already ensured that those who physically performed the acts, relying honestly upon legal advice relayed by their superiors, would most definitely not be subject to investigation.
The rationale for Obama’s comment is that which he reiterated on 16 April 2009: “there [i]s nothing to gain by laying blame for the past.” But in being so dismissive, Obama is ignoring what could be gained from such an investigation; namely, an affirmation of the obligatory character of one of the most important aspects of international humanitarian law: the accountability of state leaders for criminal activities committed while in office. As Stacey Sullivan, an advisor to Human Rights Watch, states, “prosecuting those responsible for torture is really about ensuring that such crimes don’t happen in the future”.
Implicit in Obama’s comment is the way in which he views the role of international law in relation to the U.S. Obama is concerned not so much with whether or not Bush Administration officials are guilty of criminal acts – in particular, torture – but whether or not it is appropriate to prosecute them. This is essentially a political question, rather than a legal one. Hence, while international law exists and may apply to the facts, the decision as to whether it is enlivened is up to Obama.
Obama’s position reveals the critical hypocrisy of a U.S. that challenges the very foundation of international law; namely, whether it should be treated as real law or as merely subject to political discretion. On the one hand, a fundamental characteristic of the law is that it is not discretionary: it cannot be selectively applied. The U.S. has consistently supported the obligatory nature of international law. Most recently, this was demonstrated by American support of the ICC’s indictment of Omar Al-Bashir. On the other hand, a refusal to prosecute Bush (along with a failure to ratify the Rome Statute) evidences the view that international law should be obligatory, but only insofar as it does not obligate the United States.
“A fundamental characteristic of the law is that it is not discretionary: it cannot be selectively applied.”
This hypocrisy comes at a time when the role of international law is not secure. While international economic law has had little trouble gaining acceptance among states, the campaign for greater recognition of human rights law has been aptly described by the prominent international lawyer, Geoffrey Robertson QC, as a ‘struggle’.
International law began with the humble foundation of the sovereignty of states, which restricted its scope to relations between states. From this basis came the rule that a state was unable to interfere with another state exercising its sovereignty within its own borders. It is this principle, which states have been extremely reluctant to relinquish, that has hindered the enforcement of human rights. While the devastation of World War Two set the framework for the Atlantic Charter, and soon after, for foundational documents such as the UN Declaration of Human Rights (1948), it was not until nearly sixty years later that a permanent international criminal court, the ICC, was established.
Even today, the ICC is so persistently criticised that it is remarkable it has survived at all. Three of the five permanent members of the UN Security Council – the U.S., China and Russia – have not ratified the Rome Statute that affords the ICC jurisdiction over them. India, too, has refused to ratify the Rome Statute.
Why have these states refused to ratify? Because they have the most to lose from the constraining jurisdiction of an international court. As neo-conservative analyst Robert Kagan argues, a state’s support for international law is inversely proportional to its strength in the global political order. All four of these countries are economically powerful: the U.S. has the world’s largest GDP and China, Russia and India represent three of the four ‘BRIC’ countries (BRIC denoting the fast-growing developing countries of Brazil, Russia, India and China, which Goldman Sachs reports are likely to eclipse the combined wealth of the original G-8 countries by 2050). Moreover, these four countries possess nuclear weapons. For these reasons they are strongly positioned within the global system.
“To set a precedent mandating that he who has the gold can exempt himself from international responsibility is extremely dangerous.”
Further, all four countries are closely related to actual or potential military conflicts (U.S.-Iraq, China-Taiwan, Russia-Georgia and India-Kashmir). Each has a vested interest in minimising international hindrance of their ability to pursue their interests in those regions. However, it is precisely in these war-torn regions that regulation through the vehicle of international law is most vital.
What would an indictment of Bush officials achieve? The U.S. is the hegemonic power of the current world order. If its leaders were held accountable for breaches of international law, it would send a powerful message: all leaders who commit international crimes will be held accountable for their actions, regardless of the clout of their country in the international system. That is, it would solidify the obligatory nature of international law.
Apart from the general desire to achieve justice and prevent human rights violations, why is this important? Scholars such as Paul Kennedy and Robert Gilpin have described world politics as being marked by the succession of powerful states rising to organise the international system. As with all previous empires, U.S. hegemony will come to an end. Historian Niall Ferguson has written that the twentieth century witnessed the decline of the West and a reorientation of the world towards the East. As G. John Ikenberry, a Princeton University professor, argues, “the United States’ most powerful strategic weapon is the ability to decide what sort of international order will be in place to receive [power in the international order]”.
Ikenberry’s argument is directly applicable to international criminal law. The more the U.S. and international law “binds together capitalist democratic states in deeply rooted institutions; the more open, consensual and rule-based it is; and the more widely spread its benefits, the more likely it will be that rising powers can and will secure their interests through integration and accommodation rather than through war”. Susceptibility of world leaders to international criminal trials amplifies the obligatory character of international law. The more obligatory the character of these rules are, the more likely they will survive the transition in power distribution from the U.S. that is set to occur in the next few decades.
Obama’s ‘forward-looking’ rhetoric, however, indicates it is unlikely those responsible will be brought to justice. To set a precedent mandating that he who has the gold can exempt himself from international responsibility is extremely dangerous. In a system of law based on state consent, the U.S. is in effect consenting to identical reasoning being adopted by the next superpower.
