Why the US cannot circumvent torture law

By Philippe Sands

Financial Times

Published: December 9 2005

This week Condoleezza Rice, US secretary of state, mounted a spirited defence of the Bush administration’s policies on torture and “rendition”, the cross-border transfer of terrorist suspects. “We’re operating under our laws, we’re operating under our international obligations,” is the refrain. But these cleverly crafted words do not mean what they appear to say. The US position is premised on the claim that its actions comply with US law and, since US law complies with its international obligations, these too are being complied with. The claim is flawed.

Take the definition of torture. The definitions under the 1984 torture convention and the relevant US statute are not the same. The threshold for torture is lower under international law: acts that do not amount to torture under US law may do so under international law. “Waterboarding” – strapping a detainee to a board and dunking him under water so he believes that he might drown – plainly constitutes torture under international law, even if it may not do so under US law.

How, then, does the administration justify the claim that US law trumps? When the US joined the 1984 convention it entered an “understanding” on the definition of torture, to the effect that the international definition was to be read as being consistent with the US definition. The administration relies on the “understanding”. So, when Ms Rice says the US does not do torture or render people to countries that practise torture, she does not rely on the international definition. That is wrong: the convention does not allow each country to adopt its own definition, otherwise the convention’s obligations would become meaningless. That is why other governments believe the US “understanding” cannot affect US obligations under the convention. They are right.

Avoiding international law is an emblematic feature of this administration. Take another example, a little noted opinion prepared in March 2004 for Alberto Gonzales (now US attorney-general) on the question: does international law allow the US to transfer individuals out of Iraq for interrogation? The fourth Geneva convention (1949) is crystal clear: article 49 prohibits “forcible transfers” from occupied territory to any other country, regardless of motive. Yet Jack Goldsmith, then assistant attorney-general (now at Harvard Law School) perversely advised the administration that the convention allowed transfers out of Iraq “for a brief but not indefinite period, to facilitate interrogation”. That is wrong.

Advice of this kind gives rise to illegal and disreputable policies on torture, transfer and rendition. They undermine co-operation with allies and diminish prospects for effective responses to terrorism. Advice such as this leads its authors and policymakers who act on it into the territory of international illegality. The 1984 torture convention prohibits not only torture but also prohibits complicity in torture.

An unlawful transfer under the Geneva convention is a “grave breach” of international law. Lending support to such acts can give rise to individual criminal liability. It justifies claims by Laurence Wilkerson, chief of staff to Colin Powell when secretary of state, that efforts by Dick Cheney, vice-president, to do away with all restrictions on the treatment of detainees could make him guilty of war crimes.

The possibility of criminal sanctions is real. In 1947 a US military tribunal in the Altstotter case convicted lawyers for complicity in international crimes, for their role in enacting and enforcing Nazi laws and decrees that permitted crimes against humanity. Participation in a government-organised system of cruelty gave rise to criminal liability.

In 1999 the UK House of Lords affirmed the obligation to prosecute or extradite torturers, ruling that even a former head of state, Chile’s Augusto Pinochet, could not claim immunity. Yesterday the Lords gave an important judgment affirming the prohibition on torture (as defined by the convention) and the use of its fruit in proceedings.

These cases serve as a salutary reminder of the potential consequences of violating international laws. Ms Rice’s policy statement fell short of affirming the US would apply the international definition of torture, take steps to prevent any person under its jurisdiction or control from torturing any person of any nationality anywhere in the world, and prosecute torturers. No amount of legal acrobatics is a defence to gross violations of international law. Under international law no immunities can be granted, even for the highest officials once out of office.

Philippe Sands QC is professor of law at University College London and author of Lawless World (Penguin Viking)