Saturday, August 10, 2013

International Law - Waterboarding and Torture

According to the website Waterboarding.org, waterboarding is defined as “The head is tilted back and water is poured into the upturned mouth or nose. Eventually the subject cannot exhale more air or cough out more water, the lungs are collapsed, and the sinuses and trachea are filled with water. The subject is drowned from the inside, filling with water from the head down. The chest and lungs are kept higher than the head so that coughing draws water up and into the lungs while avoiding total suffocation.” [1].

Before we even consider the UN Convention against Torture and U.S. obligations within, there are several other areas of international law concerning this issue that must be considered.

Geneva Convention IV:

In the Article 32 of the Fourth Geneva Convention, which the United States is a party of, prohibits “all forms of torture, whether they form part of penal procedure or are quasi- or extra-judicial acts, and whatever the means employed” [2]. The questionable terminology here seems to deal with ‘civilian persons’ and the ability to determine between a civilian and an enemy combatant, similar to the terminology of recognized statehood.

Rome Statute:

The United States is also a member of the international Criminal Court under the Rome Statute, which states in Article 7 that torture, defined in the statute as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”, is considered a crime against humanity [3]. The United States (and Israel) signed the Rome Statute, but never ratified it. Among states not signing or ratifying are China, Indonesia, and India, which illustrates that invalidity of the International Criminal Court since the United States, Israel, nor China are bound to jurisdiction.

United Nations Convention against Torture:

Article 31 is the first article that grabs attention in the UN Convention against Torture because it allows a state party to denunciate the “Convention by written notification to the Secretary-General of the United Nations” and that “denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General” [4]. The Convention itself defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” [5]. Article 31 allows a legal exit strategy for party states and only binds party states to “any act or omission which occurs prior to the date at which the denunciation becomes effective” [6]. It should be noted though that denunciation only becomes effective “one year after the date of receipt of the notification by the Secretary-General” [6].

In the Chilean case, “The government headed by General Pinochet came to power in 1973 through a military coup d’état that removed the elected government headed by Dr. Salvado Allende”[7]. After the Chilean government transferred back to “civilian rule in 1990, Pinochet negotiated an amnesty with the new government”[8]. In 1998, while in Great Britain for medical treatment, Pinochet was detained by the British government under an extradition request from Spain. This extradition was dismissed due to “(1) the original request failed because the offenses did not meet the test of double criminality; and (2) as head of state, Pinochet enjoyed immunity from prosecution of the acts he may have committed” [9].

What are the differences between the Pinochet case and the Bush authorizations? 1) Chili was a lesser developed post-colonial state instead of an economically and militarily powerful state with a UN veto 2) The United Nations Convention against Torture had not occurred 3) Bush was never charged by the domestic courts (due to the consolidated domestic capital and economic power) the U.S. courts or a foreign state while Pinochet had already received amnesty from the transition government he relinquished power to, 4) The U.S. never ratified the Rome Statute, so how can it fall under the International Criminal Court jurisdiction?, and 5) International law is hypocritical, based on capital, and is only tangible to post-colonial or lower economic states who are forced to abide by it.

[1] “What Waterboarding Is,”Waterboarding.org, accessed August 8, 2013, http://waterboarding.org/info

[2] Geneva Convention IV, Article 32, August 12, 1949, 75 UNTS 287, http://www.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/6deaa63f03bf9d75c12563cd0042bc22

[3] UN General Assembly, Rome Statute of the International Criminal Court, Article 7, 17 July 1998, http://untreaty.un.org/cod/icc/statute/romefra.htm

[4] UN Convention Against Torture, Article 31, December 10, 1984, http://www.un.org/documents/ga/res/39/a39r046.htm

[5] UN Convention Against Torture, Article 1, December 10, 1984, http://www.un.org/documents/ga/res/39/a39r046.htm

[6] UN Convention Against Torture, Article 31, December 10, 1984, http://www.un.org/documents/ga/res/39/a39r046.htm

[7] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 463 (9th ed. 2010)

[8] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 464 (9th ed. 2010)

[9] Gerhard von Glahn & James Larry Taubee, Law Among Nations: An Introduction to Public International Law p. 464 (9th ed. 2010)

1 comment:

  1. Is there no customary law at this point? What about IUS COGENS? You think that recent politicians have vocally protested against waterboarding/torture - considering the CIA was afraid of repercussions that could occur if they tried under the Obama administration - does that not count as a persistant protester? There must be some kind of roadblock in international law that would prevent Trump from being able to bring it back. Even if he did, would the CIA be required to do so, or do they have some autonomy on that decision?

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