Volume I – Employment Justice

December 2011, No. 2

Featured Forum Post – Mad Women: The Case for Ending Sex-Based Discrimination on American Soil by Foreign Subsidiaries

Congress and the Supreme Court should seek to rectify harmful double standards by preventing foreign corporations with American-based subsidiaries from discriminating on American soil.

 

Download PDF of Volume 1 – Employment Justice

Download PDF of this article.

Ending the Sweat Shops of the Soil: Eliminating the Agricultural Worker Exception From Federal Labor Laws

In Ending the Sweat Shops of the Soil: Eliminating the Agricultural Worker Exception From Federal Labor Laws, Tamara Lam-Plattes examines the unjust reasoning for excluding agricultural workers from the legal protections afforded to different labor industries by the federal government and analyzes the detrimental conditions that result from such marginalization. In her analysis, Lam-Plattes provides the historical context for the current legal framework beginning with the formation of the National Labor Relations Act and the Fair Labor Standards Act. Lam-Plattes explains the flawed rationale for omitting agricultural workers from federal labor protections, including the racial biases that led to the decision. After an analysis on the effect of the exclusion on agricultural workers today as well as the possible positive impact of potential inclusion into the NLRA and the FLSA, Lam-Plattes makes the argument that the current laws fail constitutional muster and that the judiciary should, under both a strict scrutiny and a rationality review, take action to force the federal government to include agricultural workers in federal labor protection laws.

 

Download PDF of Volume 1 – Employment Justice

Download PDF of this article.

Franklin to Franken: The Unfulfilled Frontier of Protecting the American Worker

Through an analysis of the Fair Labor Standards Act of 1938 (FLSA) and the Employee Misclassification Prevention Act of 2010 (EMPA) the author tackles the lingering problem of misclassification of workers as independent contractors. Misclassification not only undermines the intent of the FLSA to prevent exploitation and afford basic protections to American workers; it also allows unscrupulous employers to gain a competitive advantage over businesses that play by the rules. The practice of misclassification strips workers of protections that they are entitled to under the FLSA and most aren’t aware they are not protected until it is too late. The author examines the EMPA’s effort to address the problem of misclassification. He identifies the shortcomings of the act and makes recommendations on how to strengthen legislation like the EMPA in order to guarantee misclassification is curtailed in the future.

 

Download PDF of Volume 1 – Employment Justice

Download PDF of this article.

The Face of Discrimination: Employment Verification and the Purpose and Effect of National Origin Discrimination

With the American economy currently in recession, some Americans have come to perceive undocumented immigrants as a threat to job security and unfair competition in the face of high unemployment rates. To ease these concerns, the Obama administration has expanded an employer sanction program facilitated by a web-based system that performs the citizenship status check for employers by matching names to centralized government databases. However, the problem with this system, known as E-Verify, is that it produces discriminatory results, primarily affecting foreign-born, work-authorized Mexican aliens.

This article argues that employer sanction tools, specifically the system known as E-Verify, as implemented by the Obama administration, violates Title VII of the Civil Rights Act of 1954 because the employer sanctions law explicitly allows employers to discriminate on the basis of citizenship. The Obama administration’s version of employer sanctions thus serves as the driving force for employers’ national origin discrimination. Accordingly, employer sanctions must be repealed and replaced with a nondiscriminatory solution to the problem of undocumented immigrants entering the United States.

 

Download PDF of Volume 1 – Employment Justice

Download PDF of this article.

Volume II – Fall 2012 – Spring 2014

February 2011, No. 1

Standards Of Torture: Customized for Nation-States or One Size Fits All?

I.               INTRODUCTION

 

Torture is a concept that has been internationally reviled for centuries, if not in actuality, at least in name.1  Starting as far back as 1215, the Magna Carta outlawed a person being “imprisoned, or in any other way ruined.”2  However, it was not until 1640 that England banned judicial torture, or torture sanctioned by the State.  Even then, England allowed torture-like activities like burning at the stake or branding of prisoners to continue well into the 18th and 19th centuries.3  Other countries soon followed suit, banning torture officially while maintaining it in practice.4  Scotland banned the practice in 1708, Prussia (modern-day Germany) in 17405, Russia in 1801 and Spain in 1812.6  Even the Bill of Rights for the US Constitution adopted in 1789 had amendments barring the use of  “cruel and unusual punishment” as well as disallowing loss of liberty or life without due process of the law.7  However countries soon encountered the dilemma that would bedevil the fight against torture well into the modern era.  It is well and good to abolish torture, but if everyone has a differing standard of what, where and when torture is banned, then one country’s torture may be another country’s “enhanced interrogation” standard.

Today, the standards are delineated not by country but by treaty.  The major treaties pertaining to torture are as follows: The United Nations Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Geneva Conventions and their Protocols and the International Criminal Court derived from the Rome Statute of 1998.  Each one defines torture differently, placing emphasis on the act, the circumstances or the person to be tortured.  This paper seeks to compare the standards and contrast it with the view America takes.  As an international player that bills its president as the “leader of the free world,” America’s stance is especially troubling in that it goes against some of the standards touted by internationally accepted treaties such as CAT and the Geneva Conventions.

In order to seek diplomatic harmony with the international community and eradicate torture effectively, America should adopt a global standard instead of remaining apart.  The final part of this paper will explore what that global standard should be and why adopting one uniform standard instead of several standards is a better approach to ending a practice that is increasingly becoming an international problem

II.             UNITED NATIONS CONVENTION AGAINST TORTURE (CAT)

By far, the clearest definition of torture comes from the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which was adopted in 1984 and entered into force in 1987.8  CAT was derived from the Universal Declaration of Human Rights (UDHR) and cites a similar ban against torture in the International Covenant on Civil and Political Rights (ICCPR) in its preamble.9 CAT defines torture as:

[A]ny 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.10

This means that no matter what circumstances may arise in which information or a confession is needed from a person or a third party, torture is never allowed as a means to that end.  Another requirement is that the person perpetuating the act does not necessarily need to be of the state but the action must be state-sanctioned.  Furthermore, CAT provides that this ban on torture is absolute and may not be justified for purposes of national security.11  The only time pain and suffering is considered legitimate is if it occurs in the course of lawful sanctions.12

There are three other relevant provisions of CAT.  The first is that extraordinary rendition, or the practice of sending non-national suspects to other countries where they may be subjected to torture, is also banned.13  Article Three provides, “No State Party shall expel, return…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.”14

The second requirement is that all signatories to CAT must make torture a criminal act under domestic law.15  Thirdly, all signatories are responsible for executing the provision of CAT legally, judicially and administratively.16  In other words, CAT is not self-executing, requiring State Parties to the Convention to implement certain provisions within its own legislation in order to go into effect.

The US signed CAT on April 18, 1988 but ratified it on October 21, 1994.17   The ratification was not absolute; the US would only ratify the treaty with reservations.  In other words, the US accepted the treaty but reserved the right to have differences with the treaty.  The main difference the US had was with the definition of torture.  The US’s definition inserts a specific intent requirement to qualify as an act of torture.18  There is no question of whether the torture is performed in order to gain information or a confession; rather a would-be torturer must intend to “inflict severe physical or mental pain or suffering.”19   Instead of torture being a means to an end, the torture must be an end in itself in order to be criminalized under the US definition.

The second reservation is that the “acquiescence” required by CAT from the public official to constitute torture is satisfied only if the official is aware of the activity and does not intervene to prevent it.20  Lack of awareness will not qualify an action as torture.  In other words, if someone contravenes the directive of his or her superior and engages in torture, no one else in the chain of command is responsible.

The third reservation the US had was that CAT must be subject to approval by Congress and therefore was non-self-executing.21  As a result, there are still provisions of CAT that has yet to be executed into law by the US.22  It took six years to ratify CAT itself; incorporating each of the 16 provisions into domestic law may take many more.

The fourth reservation the US had was with the requirement that extraordinary rendition is banned if the country finds substantial grounds that the person being sent would be in danger of being subjected to torture.23  The US finds “substantial grounds” to be interpreted as “more likely than not.”24  This differentiation is what has enabled the US to continue its practice of extraordinary rendition without being held liable to the standard set under CAT.25  As long as the US can find that a country does not meet the “more likely than not” requirement that it will practice torture on a detainee, then the US can extradite the person without violating CAT.

What happens if a State Party violates CAT?  The treaty provides for a Committee Against Torture (Committee) which oversees execution of the treaty, ensures compliance every four years26 and brings complaints against the State Party to the United Nation’s judiciary branch, the International Court of Justice (ICJ).27  The Committee is made of 10 members28 who are elected by secret ballot by the State Parties.29  They are private citizens with a background in human rights.  Members of the Human Rights Committee under the ICCPR are preferred.  Each State Party may nominate one national to be placed on the ballot.30  The members of the Committee serve for four years in a series of staggered terms.31  They deliver their reports on the progress of the various State Parties in eradicating torture to the Secretary-General of the United Nations.32  Should changes need to be made, the Committee will work with the State Party by providing recommendations with a follow-up report.33  Any results of these proceedings may be included in an annual report the Committee makes to the General Assembly of the United Nations.34

A State Party may make allegations regarding a violation of the treaty about another State Party.35  An individual may also make allegations regarding a violation of the treaty as long as the individual has exhausted all domestic remedies and is not pursuing the issue under another procedure of international investigation.36  The Committee is responsible for fielding all complaints and if it is an inter-Party dispute then the ICJ will resolve it.37  If however, it is an individual complaint, the Committee will resolve it privately and if the State Party proves resistant than the combined force of the United Nations will deal with the State Party at the General Assembly.38

The Committee enforces CAT in two ways.  The first is by using peer-pressure from international exposure at the General Assembly to incentivize State Parties to comply with CAT.  The second is by having the United Nations provide assistance and advice to get a less-developed State Party on the path to eradication of torture.  This is enhanced by a technical assistance program implemented by the United Nations to create a foundation at the ground level for ensuring that all administrative, military and state personnel are trained to create and perpetuate a human rights culture that will guard against torture acts.39


III.          
INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR) was established before CAT in 1966 and it was entered into force in 1976.  Instead of a strict emphasis on torture, the ICCPR focuses on individual rights across economic, political and civil spheres.  Like CAT, the ICCPR also references the Universal Declaration of Human Rights.  Also like CAT, the ICCPR is a treaty under the governance of the United Nations.40

The ICCPR has an equivalent ban on torture, like CAT, but does not give a definition for torture.  Instead the ICCPR merely provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”41  Like CAT, the ban on torture is absolute, permitting no derogation, regardless of emergency or national security.42  The only other provision that sheds light on what is not allowable under the umbrella term of “torture” is Article 10.  “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”43  The treaty does not specify what those terms mean, leaving it to the interpretation of the States and the Human Rights Committee (HRC).

The US is a signatory of the main Convention of the ICCPR, but not the following two protocols.  It signed the ICCPR on October 5, 1977, but only ratified the treaty on June 8, 1992,44 two years before the ratification of CAT, which had been adopted by the United Nations almost twenty years after the adoption of the ICCPR.45  Like CAT, the US ratified the treaty with reservations, understandings and declarations.46  The only provision of note here is that like CAT, the US declared the ICCPR to be non-self-executing.47  Furthermore, the result of the US’s declarations, reservations and understandings is that although the US recognizes ICCPR’s provisions as binding as a matter of international law, it does not find the treaty binding as far as domestic law.48   What this means is that although the US acknowledges the ICCPR’s provisions in the context of international law, or the law among nations, it in reality has no effect on how the US implements it’s own laws and policies.  In other words, the US has agreed to accept the treaty in name without holding itself bound to any of its provisions.

This is a classic example of the US setting itself apart from the international community and thereby destroying unity by refusing to set a uniform example of what standards ought to be upheld in the field of human rights.  That does not mean that in order to create uniformity the US should find all treaties going forward to be self-executing.  The very nature of US’s legislature would preclude that, as the Senate must ratify treaties by 2/3 of the vote, in keeping with the American tradition of representative democracy.  If the Senate had to execute treaties into domestic law in the ratification process, no treaties would ever be ratified, or they would take decades rather than years to ratify.  However, other States have been able to hold the ICCPR as non-self-executing and yet show the international community that the ICCPR’s provisions are being followed.  For example, Australia has held the ICCPR to be non-self-executing,49 but has established a Human Rights Commission to uphold human rights standards within the country and ensure it complies with the ICCPR among other treaties.50

The US’s reluctance to adopt the ICCPR fully is reflected in more than it’s commentary on the treaty and the long period between signature and ratification.  The ICCPR has created two optional protocols, neither of which has been signed by the US.  The first protocol allows for individual complaints to the ICCPR’s Human Rights Committee about violations of the ICCPR.51  It falls in line with the US’ policy against incorporating the ICCPR into domestic law.  The US maintains a stance that individual rights are outlined in the Constitution and may not be proscribed or expanded upon by outside sources.52

The second optional protocol abolishes the death penalty53 with the reservation that it may be allowed for the most serious crimes of a military nature committed during wartime.54  The US abstained from signing this protocol simply because the death penalty is considered a constitutional issue, one that was not considered unconstitutional by the US Supreme Court55 and therefore, like the first Optional Protocol, cannot be proscribed by an external source.

The ICCPR has a regulating body, similar to CAT’s Committee Against Torture.  ICCPR’s regulating body is called the Human Rights Committee (HRC).  It consists of 18 members56 elected through secret ballot and nominated by State Parties.57  The members are private citizens with a background in human rights and legal experience is preferred.58 Like CAT’s Committee members, the HRC’s members serve for a term of four years in staggered terms.59

The HRC has four specific responsibilities.  The first is to review reports from signatory Parties one year after the ICCPR has gone into effect and to request further reports regarding compliance with the ICCPR as needed.60  The second responsibility is to elucidate general comments made in order to ensure States are clear about the substantive and procedural obligations required under the ICCPR.  The third responsibility is specific to the first Optional Protocol outlined above, where individual complaints are processed by the HRC and a remedy is found.  Lastly, the HRC resolves complaints from one State Party to another regarding a violation of the ICCPR.61

Because the HRC only requires at minimum one report from the State Party and the US has not signed onto the Optional Protocols, the HRC has had very little bearing on the US as far as the prohibition on torture.  Individual complaints are not given competence and there have been no State-to-State complaints of the US’ practices under the torture provision of the ICCPR thus far.

IV.           GENEVA CONVENTIONS & PROTOCOLS

The Geneva Conventions were first established in 1949.  There are four conventions, each protecting a different category of person.  Two Protocols were adopted in 1977 that dealt with categorizations of people not by type but classified by what kind of conflict applied.  A third Protocol was adopted in 2005, but will not be discussed here, as it does not pertain to torture standards.62  Like CAT and the ICCPR, the Geneva Conventions are non-self-executing.63

The four main Geneva Conventions are considered universally applicable because most States have signed onto it.  Furthermore, common to all four Conventions is Article 3, otherwise known as Common Article 3.  Because it applies across various categorizations of people as well of types of conflict, it is considered one of the most important Articles of the Conventions.64  All four Conventions, Common Article 3, the additional Protocols and the relation the US has to the Conventions will be explored in depth below.

The first Geneva Convention is officially known as Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.65  The Convention applies to injured soldiers in cases of armed conflict between States,66 excepting for Common Article 3, which applies to armed conflict not of an international character.67  The Convention provides for the wounded and sick and provides that any Member State to the Convention shall treat these soldiers humanely and not subject them to torture.68  The Convention also provides for medical personnel and although it never explicitly states such personnel is protected from torture, it does provide that they shall be “respected and protected in all circumstances.”69  The assumption is that torture is precluded from respect and protection.

The second Geneva Convention is known officially as Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.70  Like the first Convention, this one deals with wounded, sick and shipwrecked sailors within an armed conflict71 excepting for Common Article 3.72  The second Convention protects sailors at sea; hospital ships73 and like the first Convention, bans torture.74  The Convention also protects religious, medical and hospital personnel on board hospital ships.75  Like the medical personnel in the first Convention, they are to be “respected and protected.”76

The third Geneva Convention is known officially as Convention (III) relative to the Treatment of Prisoners of War.77  Like the two Conventions preceding it, it also relates to situations where there is armed conflict.78  Prisoners of War are deemed to be people who belong to “members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.”79  There are many other categorizations of who can be considered a Prisoner of War including those who assist the soldiers in battle or who take up arms of their own volition.80  Prisoners of War must be “humanely treated.”81  Like the ICCPR, the Convention provides that there must be no subjection to medical or scientific experiments.82  Part III of the Convention provides in detail the parameters of captivity of Prisoners of War, ranging from living quarters to labor to hygiene to judicial sanctions.83  It also provides that “any form of torture or cruelty, are forbidden.”84

The fourth and final Geneva Convention’s official title is Convention (IV) relative to the Protection of Civilian Persons in Time of War.85  The first three Conventions were initially adopted before World War II, but after the world witnessed the atrocities perpetuated on civilians in that war, this Convention was created in order to provide civilians with protection in wartime.86

People covered under this convention are those who “at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”87  People in this category are to be protected and humanely treated and respect given to their “honour, their family rights, their religious convictions and practices, and their manners and customs.”88  This far exceeds what has been extended so far in the Geneva Conventions, but the international feeling was so strong against the Holocaust, the language was drafted to reflect a prevention of a similar atrocity happening again.89  The Convention also provides that no coercion shall be used against civilians in a wartime setting to extract information,90 which preceded the definitional language of torture in CAT.91  Finally the Convention sets out a ban against torture, much like the preceding Conventions.92

The additional Protocols to the Conventions were established to categorize the rise in conflicts not of an international nature.  Protocol I, or the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, extends the protections of the Conventions in armed conflict to people outside the people protected in the main Conventions.93  The Protocol provides as a fundamental guarantee that no civilian or military agent may engage in torture for any reason or in any circumstance.94  The US is not a signatory to this Protocol.

Protocol II, or the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts,95 was the first-ever international treaty devoted to persons in a Non-International Armed Conflict (NIAC).96  The Protocol was created in order to provide protection to victims of NIACs, which are becoming increasingly common in light of wars of national liberation and sectarian wars.  However, the Protocol does not apply to riots or minor and sporadic acts of violence.97  It does ban torture of any person who has not taken direct part or has ceased to take part in hostilities,98 and also bans any directive that allows for no survivors.  In other words, slaughter of civilians is forbidden.99  The US has not signed this Protocol either.

Common Article 3 also deals with NIAC.  Like Protocol II, it provides that persons not taking part in hostilities or prevented from or ceasing to take part, such as wounded soldiers, detained soldiers or people who have stopped fighting, are to be treated humanely.100  Torture is explicitly banned.101  Furthermore, Common Article 3 bans “outrages upon personal dignity, in particular humiliating and degrading treatment.”102   The US has adopted Common Article 3 into it’s own statutes, interpreting it narrowly or broadly as the current administration sees fit.

Something the US has adopted from the Geneva Conventions is the concept of “grave breaches” of the Conventions.  This is articulated in each of the Conventions and states:

[A grave breach involves] any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.103

The emphasis on biological experiments is something that would be adopted by the ICCPR, whereas the emphasis on great suffering and serious injury would be incorporated into the US definition of torture.104  However, the US would differ from the scienter requirement in the Geneva Conventions of wantonness or recklessness and adopt a stricter one of specific intent.105  Reckless disregard for harm to life and person would not satisfy the US’ requirement for torture, only an intent to torture specifically would qualify.

V.             INTERNATIONAL CRIMINAL COURT

The International Criminal Court (ICC) was established by the Rome Statute, which was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998.106  The Statute came about in reaction to the various tribunals held after World War II and other armed conflicts, where it was deemed better to have a standing, permanent court to try those guilty of war crimes and crimes against humanity.107  The US signed the treaty in 2000, but retracted it two years later.108  As of this date, the US remains a non-signatory to the treaty.

The ICC is a body that is separate from the United Nations but works in conjunction with them and with State Parties to bring people to justice for crimes committed.  The ICC only has jurisdiction over “the most serious crimes of international concern.”109   These crimes are split into four categories: (1) genocide, (2) crimes against humanity, (3) war crimes and (4) crimes of aggression.110

Torture is banned twice in the Statute.  The first is as a crime against humanity.111  In order to be guilty of any crime against humanity, the prosecution must show that there were multiple commissions of acts outlined in the treaty, including torture, and that these acts were part of a state-sanctioned attack against civilians.112  Torture as a crime against humanity is defined as follows:

“Torture” means 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.113

The intent requirement is the same as that used in CAT’s definition of torture.  The definition also adopts from CAT the provision that pain and suffering incidental to legitimate sanctions are not considered torture.114  However, the definition differs by implementing a custody or control requirement.  This requirement is something the US reserved in signing CAT.115

The second instance where torture is explicitly banned in the Rome Statute deals not with CAT-related definitions of torture but adopts the Geneva Convention standards under the category of war crimes.116  A war crime under the Rome Statute is considered a grave breach of the four Geneva Conventions of 1949, including torture or inhuman treatment.117  This text is lifted directly from the grave breaches definition in the Conventions.  Furthermore, the Rome Statute particularizes that in non-international armed conflicts, a war crime is considered a breach of Common Article 3 of the Geneva Conventions.  Under Common Article 3 as adopted by the Rome Statute, there is a ban against violence to life or person, mutilation or torture.118  Therefore a war crime can be committed whether it is of an international or domestic nature.

The ICC is made up of four organs: the Presidency, the Chambers, the Office of the Prosecutor and the Registry.  It is important to have a basic understanding of each of the four organs’ duties in order to better understand how claims are brought to the ICC, adjudicated and then enforced.  The Presidency is made up of three judges elected by an absolute majority of their peers in the Chambers for a maximum of two three-year terms.119  The three judges are split into one president and two vice-presidents and serve an administrative role.120  The Presidency also serves as the public face of the ICC to the world and ensures sentences are enforced.121

The Chambers consists of 18 judges, including the three in the Presidency.  The judges are assigned to the three divisions of the court: the Pre-Trial Division, the Trial Division and the Appeals Division.  Seven judges are allotted to the Pre-Trial Division, six judges are allotted to the Trial Division and five judges are allotted to the Appeals Division, one of which must be the President.122  At the pre-trial level, three judges or a single judge, depending on the situation, may hear an individual case.  At the trial level, three judges hear an individual case.  Finally at the appeals level, the entire group of five judges hears the case.123  Judges are selected based on background in criminal law, procedure and international law.  Those selected for the Pre-Trial and Trial Divisions tend to have a criminal trial background.124

The Office of the Prosecutor operates independently of the judges of the ICC.125  The Office is headed by the Prosecutor, who is elected by absolute majority by the State Parties.  The Prosecutor is nominated for office by the State Parties.  The Prosecutor then compiles a list of candidates for the State Parties to elect via secret ballot by an absolute majority.  These candidates become his or her Deputy Prosecutors.126  The Deputy Prosecutors and the Prosecutor must be of different nationalities.127  They must also have extensive experience in prosecution of criminal cases.128  Their terms last for nine years and they may not be re-elected.129  The Prosecutor or one of his or her Deputies may recuse themselves from investigating a case if there might be a question of bias.130  The Prosecutor may also hire legal advisors, as needed depending on the subject matter of the investigation at hand.131

The Prosecutor receives requests for investigation into an alleged crime covered under the jurisdiction of the ICC.132  If the Prosecutor finds it to be of merit, he or she will initiate an investigation and if there is enough evidence to make a case, the Prosecutor shall do so.  State Parties to the Rome Statute may make referrals of alleged crimes;133 the United Nations Security Council134 may also make referrals or the Prosecutor may initiate an investigation proprio motu on the basis of information received about crimes.135

Lastly, the Registry is the support organ of the court.  The Registrar, who reports directly to the President, heads the Registry.136  The Registrar is elected by secret ballot by an absolute majority by the State Parties.137  The Registrar serves for a term of five years and may be re-elected once.138  The Registry is responsible for all administrative non-judicial aspects of the court.139  The Registry is also responsible for the Victim and Witnesses Unit that oversees individual victims or witnesses to crimes committed.140

A State Party or the Security Council of the UN will make a referral to the Prosecutor to investigate actions by a State Party or people within a State who are perpetuating crimes covered by the Rome Statute.141  The Prosecutor will investigate and if he or she determines there is enough evidence to go to trial, he or she will alert the Pre-Trial Division and a hearing will be held where the judges will determine if there is enough evidence to go to trial.142  The defendant must appear at this point.  An arrest may be issued if the defendant has not or will not appear.143  Because the Court lacks an enforcement arm, the Court relies on cooperation by the State Parties in order to arrest someone.144  If the Prosecutor’s case is substantial enough, the Pre-Trial Division will confirm the charges and it will go to trial.145  The Court will not hear the case if it is currently being adjudicated at the State level, as the Court is an organ that is complementary to domestic law.146  A trial is held and if the defendant is convicted, he or she may be sentenced to a maximum of 30 years in prison, or for very special cases, life in prison.147  The ICC has no death penalty.  After conviction a defendant may still appeal the case.148  If the appeal fails, the conviction stands.

VI.           US STANDARD

The United States standard for torture is dissimilar from the international treaties outlined above yet adopts aspects from the Geneva Conventions.  As time progresses and administrations change, the definition becomes at times narrower or more expansive.  However, the US has always maintained its own definition of torture and its own interpretation of international conventions in an effort to not be seen as beholden to other countries or other countries’ standards but carve out its own.  It is instructive to view the standard as it evolved from the Torture Act of 1994 through the most recent communications from the Barack Obama Administration in 2011.  There is a tension throughout with the international standards and it is unclear going forward if the US will increasingly come to embrace some kind of international standard or continue on its path of isolationism.

The Torture Act established the US definition of torture the same year it ratified CAT with the reservations identifying it’s own separate definition.  It established the US position on domestic law to the exclusion of any outside treaties’ definition.

“Torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.149

The only difference between the Torture Act’s definition and the definition outlined by the US in CAT is that the statutory definition adds the requirement that the person committing the act of torture be “acting under the color of law.”150  The definition incorporates the pain and suffering exclusion incidental to lawful sanctions described in CAT.151  It differs from all international standards by inserting a specific intent requirement, where torture is not committed if the intent to torture is not present.  Acts causing pain and suffering in order to extract a confession or information is not torture if the scienter requirement is not met.

In 2006, Congress enacted the War Crimes Act.  The War Crimes Act formally adopted the standards used in the four Geneva Conventions and paved the way for any protocols the US signed.  The US went on to define a war crime as a “grave breach in any of the international conventions signed at Geneva 12 August 1949”152 as well as a “grave breach of common Article 3.”153  The statute continues on by listing nine examples of grave breaches of Common Article 3 of the Geneva Conventions.154  One of these breaches is torture.  The definition is as follows:

The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.155

This definition keeps the core of the Torture Act’s definition but eschews the “color of state law” and adds people who conspire or attempt to commit torture.  In other words, the WCA expanded torture by including people who were involved in torture if not actually committing it.

In reaction to the decision in Hamdan v. Rumsfeld (2006),156 Congress enacted the Military Commissions Act of 2006 to allow for military commissions to try detainees.   The MCA narrowed the WCA by narrowing the definition of what was meant by a war crime under the Geneva Conventions,157 by giving more authority to the president158 and holding that cruel and inhumane treatment was a crime but ignored degrading treatment entirely.159  Before the MCA, WCA allowed for any grave breaches of the Geneva Conventions to be considered as a war crime.  The MCA specified instead that “ grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character”160 would be henceforth deemed a war crime.  Furthermore, the President was given authority to interpret the meaning and application of the Conventions outside grave breaches of the Conventions.161  This meant the President was given an extraordinary amount of authority to interpret provisions of the Conventions using a higher standard to achieve a breach or implement additional administrative regulations for that breach.162   The MCA kept the torture definition the same as the WCA but excluded degrading treatment as a crime.163

Also in 2006, the Committee Against Torture reported to the US its recommendations for what the country could be doing to better implement CAT.  The US first made a report to the Committee, the Committee then made its own assessment and gave the US a report and then followed up the following year.  The US opened with a quotation by then President George W. Bush, “Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere.”164

The Committee returned a report rife with suggestions.  Of the many, a few were more considerable than others.  The Committee recommended (for the second time) that the US enact a federal crime of torture as explicitly required in CAT.165  The Committee recommended that the US should register all its detainees in an effort to keep track of them and not suffer “lost” or missing detainees who then may or may not be tortured.166   The Committee also barred secret detention facilities167, extraordinary rendition168 and required the US to close the Guantanamo Bay facility.169

The US responded to the report in 2007.  It said that CAT did not explicitly specify a closing of Guantanamo nor did it require registration of detainees so the US declined to follow those suggestions.170  The US said it would only follow what was in the treaty itself. The US also distinguished its version of rendition from the type banned by CAT because of the different standards of likelihood that a person would face torture in the destination country.  CAT requires a “real risk” of torture, whereas the US applies a “more likely than not” standard.171  Finally, the US says the law of war governs all detainees affiliated with Al-Qaeda or the Taliban and therefore the Convention does not apply to interrogation procedures of those detainees.  The US ignored the CAT recommendation to criminalize torture domestically.  The next report from CAT is due up this year or the next and it will be interesting to see what the recommendations will be and how the US will follow up.

In 2007, President George W. Bush issued Executive Order 13440 that allowed for waterboarding, hooding, sleep deprivation and forced standing during CIA interrogations at the President’s discretion.  He derived his order from the power vested in him by the MCA and specified that the torture definition would stand as it was outlined in the Torture Act.172

In 2009, on President Barack Obama’s second day in office, he repealed Executive Order 13440 by issuing Executive Order 13491 and officially sanctioned the Geneva Conventions Common Article 3 as a minimum baseline for interrogation in armed conflicts.173  The order specified that violence to life and person and outrages to personal dignity would not be tolerated by any official agent of the US nor would be tolerated in any facility operated by the US.  This expanded what was disallowed in interrogation and signaled a change in US policy toward international treaties.

Finally in 2011, the Office of the Press Secretary of the White House issued a fact sheet about Guantanamo, where the US announced its support of the additional Protocols of the Geneva Conventions, Protocol I and Protocol II.174  For the first time, the US has acknowledged application of international torture standards in a non-international armed conflict.  Although it falls short of being party to the Protocols, it is a major step for the US in embracing the international framework toward eradicating torture.

VII.         CONCLUSION

The US should adopt a combination of international standards to truly be the “leading force” against torture as President Bush indicated in 2004.  In order to do so, it would be best for the US to keep the Geneva Conventions as adopted, and to eventually incorporate the first two Protocols, which in light of the most recent communications from the Obama Administration, seems to be the direction in which the country is heading.  The WCA, MCA and President Obama’s Executive Order 13491 have already adopted the Geneva Conventions.  Furthermore, the additional Protocols have been tacitly acknowledged.  With this much support toward accepting the Conventions, accepting the additional Protocols does not seem like the impossibility it once was.  This is especially true in the changing context of war and terrorism where often “war” is not fought between countries but between factions.  As this evolves, the Protocols will be more relevant and therefore easier to ratify in Congress.

Secondly, instead of requiring a specific intent for torture, it would be better to adopt CAT’s definition.  Why else have an international treaty if countries refuse to adopt its provisions?  CAT’s definition is the most clear out of the variations on torture outlined in other international treaties.  For instance, the ICCPR and the Geneva Conventions both ban “torture,” but never actually spell out what that means.  In contrast, CAT not only spells out what torture means but also provides that there are no mitigating circumstances where torture is justified.  The US only bans those who torture for torture’s sake.   Someone who accidentally tortures or in the pursuit of truth tortures will not be held liable.  This seems disingenuous in keeping with the US’ image of holding torture to be reprehensible.  Essentially, the US is saying with its specific intent requirement, that torture is not legitimate in certain circumstances, but that does not bar torture completely.   CAT, on the other hand, finds the ban to be absolute.  If the US, which used to be the leader in human rights, seeks to regain that position, torture with conditions is not the best standard to adopt.  An outright ban in keeping with an international treaty that was created to deal with the atrocity of torture would help the US to be at the forefront of international human rights.

Thirdly, the US should sign onto the Rome Treaty and allow the ICC to adjudicate claims of war crimes as the ultimate gesture of international good faith.  It is difficult to accuse another party of engaging in torture when the US itself refuses to be adjudicated under the ICC or even be held to the same standard it is imposing on the other state.  For example, if the US wished to file a complaint against a nation for violating CAT, the nation, and the international community would take umbrage because the US does not hold itself to CAT by making the treaty non-self-executing and refusing to be bound by it.   Furthermore, even if the US had such a complaint, it has no court to adjudicate it in, having not signed onto the ICC.  Should it try to resolve the dispute domestically, there is no way the nation would grant the US competence.  In other words, it would be in the best interests of the US to have an international court in which to air its grievances.    Presumably the US does not engage in torture so it has nothing to fear from an international tribunal and much to gain.  As of now, it has only further alienated the international community, making it that much harder to have other nations cooperate when terrorists need to be detained or when US citizens are found to be terrorists abroad.

Although the US has a history of pursuing isolationism and seeking to impose its will on lesser countries, the world has changed.  Nations are not enough to stem the tide of dissidents from all walks of life who choose terrorism as a way of expressing dissatisfaction.  Terrorists are extremely mobile and the US needs as much support as possible to be able to follow them from country to country in order to capture them and prevent harm.  Only global cooperation can assist the US in combating the threat of those who wish to do harm to the country and to the citizens of the country.  The US’s persistence in having a separate standard apart from the international community is shortsighted.  It is no longer feasible to have the US try to exert its influence in to having other countries bend to its will.  There are too many possible targets in too many countries and without the go-ahead of the nation that is hosting the terrorist, it will be difficult for the US to detect and prevent threats.

Without the support of other signatories of international treaties the US is doing itself a disservice but by adopting standards others have adopted it encourages greater uniformity and greater cohesion. Only by working together can the US finally be effective in its “War on Terror” and more importantly, in fighting torture internationally.

 

 


[1] George Ryley Scott, History of Torture Throughout the Ages 134 (Kessinger Publ’g, LLC, 2003).

[2] Danny Danziger & John Gillingham, 1215: The Year of the Magna Carta 283 (Touchstone, 2004) (2003).

[3] Scott, supra note 1, at 136.

[4] Scott, supra note 1, at 136.

[5] Scott, supra note 1, at 135.

[6] Scott, supra note 1, at 136.

[7] Scott, supra note 1, at 134.

[8] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://www2.ohchr.org/english/law/cat.htm [hereinafter CAT].

[9] CAT, supra note 8, at 85.

[10] CAT, supra note 8, at art. 1(1).

[11] CAT, supra note 8, at art. 2(2).

[12] CAT, supra note 8, at art. 1(1).

[13] CAT, supra note 8, at art. 3(1).

[14] CAT, supra note 8, at art. 3(1).

[15] CAT, supra note 8, at art. 4.

[16] CAT, supra note 8, at art. 2(2).

[17] Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Collection 5 (June 11, 2011, 7:03 AM), http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en [hereinafter CAT Status].

[18] CAT Status, supra note 17, at 13.

[19] CAT Status, supra note 17, at 13.

[20] CAT Status, supra note 17, at 13.

[21] CAT Status, supra note 17, at 13.

[22] Committee Against Torture [COM], Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, at 1, CAT/C/USA/CO/2 (May 18, 2006).

[23] CAT, supra note 8, at art. 3(1).

[24] CAT Status, supra note 17, at 13.

[25] See Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009).

[26] CAT, supra note 8, at art. 19(1).

[27] CAT, supra note 8, at art. 30(1).

[28] CAT, supra note 8, at art. 17(1).

[29] CAT, supra note 8, at art. 17(2).

[30] CAT, supra note 8, at art. 17(2).

[31] CAT, supra note 8, at art. 17(5).

[32] CAT, supra note 8, at art. 19(1).

[33] CAT, supra note 8, at art. 19(3).

[34] CAT, supra note 8, at art. 24.

[35] CAT, supra note 8, at art. 21(1).

[36] CAT, supra note 8, at art. 22(4)(a)-(b).

[37] CAT, supra note 8, at art. 30(1).

[38] Fact Sheet No. 17, The Committee Against Torture, Off. of the United Nations High Comm’r for Human Rights (last visited Dec. 3, 2011), http://www.ohchr.org/Documents/Publications/FactSheet17en.pdf.

[39] Id.

[40] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www2.ohchr.org/english/law/ccpr.htm [hereinafter ICCPR].

[41] ICCPR, supra note 40, at art. 7.

[42] ICCPR, supra note 40, at art. 4(1)-(2).

[43] ICCPR, supra note 40, at art. 10(1).

[44] Status of the International Covenant on Civil and Political Rights, United Nations Treaty Collection (June 11, 2011, 7:03 AM), http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en [hereinafter ICCPR Status].

[45] CAT Status, supra note 17, at 5.

[46] CAT Status, supra note 17, at 24.

[47] CAT Status, supra note 17, at 25.

[48] CAT Status, supra note 17, at 25.

[49] ICCPR Status, supra note 44, at 6.

[50] Human Rights Commission Act 1986 (Cth) s 11(e), sch 2 (Austl.), available at http://www.comlaw.gov.au/Details/C2012C00072

[51] Optional Protocol to the International Covenant on Civil and Political Rights art. 1, Dec. 16, 1966, 999 U.N.T.S. 302, available at http://www2.ohchr.org/English/law/ccpr-one.htm [hereinafter ICCPR PROTOCOL I].

[52] ICCPR Status, supra note 44, at 25; See Also CAT Status, supra note 17, at p.48 “nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”

[53] Second Optional Protocol to the International Covenant on Civil and Political Rights art. 1, Dec. 15, 1989, 44 U.N. G.A.O.R. Supp. (No. 49) at 207, available at http://www2.ohchr.org/English/law/ccpr-death.htm [hereinafter ICCPR PROTOCOL II].

[54] ICCPR PROTOCOL II, supra note 53, at art. 2(1).

[55] See Gregg v. Georgia, 428 US 153 (1976).

[56] ICCPR, supra note 40, at art. 28(1).

[57] ICCPR, supra note 40, at art. 29(1)-(2).

[58] ICCPR, supra note 40, at art. 28(1)-(2).

[59] ICCPR, supra note 40, at art. 32(1).

[60] ICCPR, supra note 40, at art. 40.

[61] Human Rights Civil and Political Rights: The Human Rights Committee Fact Sheet No. 15, Off. of the United Nations High Comm’r for Human Rights 14-15 (last visited Dec. 3, 2011), http://ohchr.org/Documents/Publications/FactSheet15rev.1en.pdf.

[62] The Geneva Conventions of 1949 and their Additional Protocols: Overview, Int’l Comm. of the Red Cross (Oct. 29, 2010), http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm [hereinafter GC Overview].

[63] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 45, Aug. 12, 1949, 6 U.S.T. 3114, available at http://www.icrc.org/ihl.nsf/FULL/365?OpenDocument [hereinafter Geneva Convention I].

[64] Id.

[65] Geneva Convention I, supra note 63.

[66] Geneva Convention I, supra note 63, at art. 2.

[67] Geneva Convention I, supra note 63, at art. 3.

[68] Geneva Convention I, supra note 63, at art. 12.

[69] Geneva Convention I, supra note 63, at art. 24.

[70] Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, available at http://www.icrc.org/ihl.nsf/FULL/370?OpenDocument [hereinafter Geneva Convention II].

[71] Geneva Convention II, supra note 70, at art. 2.

[72] Geneva Convention II, supra note 70, at art. 3.

[73] Geneva Convention II, supra note 70, at ch. 3.

[74] Geneva Convention II, supra note 70, at art. 12.

[75] Geneva Convention II, supra note 70, at art. 36.

[76] Geneva Convention II, supra note 70, at art. 37.

[77] Convention (III) relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, available at http://www.icrc.org/ihl.nsf/FULL/375?OpenDocument [hereinafter Geneva Convention III].

[78] Geneva Convention III, supra note 77, at art. 2.

[79] Geneva Convention III, supra note 77, at art. 4(1).

[80] Geneva Convention III, supra note 77, at art. 4.

[81] Geneva Convention III, supra note 77, at art. 13.

[82] Id.

[83] Geneva Convention III, supra note 77, at pt. 3.

[84] Geneva Convention III, supra note 77, at art. 87.

[85] Convention (IV) relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, available at http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument [hereinafter Geneva Convention IV].

[86] GC Overview, supra note 62.

[87] Geneva Convention IV, supra note 85, at art. 4.

[88] Geneva Convention IV, supra note 85, at art. 27.

[89] GC Overview, supra note 62.

[90] Geneva Convention IV, supra note 85, at art. 31.

[91] CAT, supra note 8, at art.1(1).

[92] Geneva Convention IV, supra note 85, at art. 32.

[93] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts art.1, June 8, 1977, 1125 U.N.T.S. 3, available at http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument [hereinafter Geneva Protocol I].

[94] Geneva Protocol I, supra note 93, at art. 75.

[95] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, available at http://www.icrc.org/ihl.nsf/FULL/475?OpenDocument [hereinafter Geneva Protocol II].

[96] GC Overview, supra note 62.

[97] Geneva Protocol II, supra note 95, at art. 1(2).

[98] Geneva Protocol II, supra note 95, at art. 4(2)(a).

[99] Geneva Protocol II, supra note 95, at art. 4(1).

[100] Geneva Convention IV, supra note 85, at art. 3(1).

[101] Geneva Convention IV, supra note 85, at art. 3(1)(a) “[No] violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

[102] Geneva Convention IV, supra note 85, at art. 3(1)(c).

[103] Geneva Convention I, supra note 63, at art. 50.

[104] Torture Act, 18 U.S.C.A. § 2340 (West 2004).

[105] Id.

[106] Rome Statute of the Int’l Criminal Court (PrintPartners Ipskamp, Enschede 2011) (1998) available at http://untreaty.un.org/cod/icc/statute/english/rome_statute(e).pdf  [hereinafter Rome Statute].

[107] Overview, Rome Statute of the Int’l Criminal Court (last updated Dec. 19, 2003), http://untreaty.un.org/cod/icc/general/overview.htm.

[108] Status of the Rome Statute of the ICC, United Nations Treaty Collection (Mar. 12, 2011, 7:56 AM), http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#10.

[109] Rome Statute, supra Note 106, at art. 1.

[110] Rome Statute, supra Note 106, at art. 5.

[111] Rome Statute, supra Note 106, at art. 7(1)(f).

[112] Rome Statute, supra Note 106, at art. 7(2)(a).

[113] Rome Statute, supra Note 106, at art. 7(2)(e).

[114] CAT, supra note 8, at art. 1(1).

[115] CAT Status, supra note 17, at 13.

[116] Rome Statute, supra Note 106, at art. 8(2).

[117] Rome Statute, supra Note 106, at art. 8(2)(a)(ii).

[118] Rome Statute, supra Note 106, at art. 8(2()c)(i).

[119] Rome Statute, supra Note 106, at art. 38(1).

[120] Rome Statute, supra Note 106, at art. 38(3)(a).

[121] Understanding the International Criminal Court, Int’l Criminal Court 7 (Oct. 5, 2011), http://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf.

[122] Rome Statute, supra Note 106, at art. 39(1).

[123] Rome Statute, supra Note 106, at art. 39(2)(b).

[124] Rome Statute, supra Note 106, at art. 39(1).

[125] Rome Statute, supra Note 106, at art. 42(1).

[126] Rome Statute, supra Note 106, at art. 42(4).

[127] Rome Statute, supra Note 106, at art. 42(2).

[128] Rome Statute, supra Note 106, at art. 42(3).

[129] Rome Statute, supra Note 106, at art. 42(4).

[130] Rome Statute, supra Note 106, at art. 42(6)-(7).

[131] Rome Statute, supra Note 106, at art. 42(9).

[132] Rome Statute, supra Note 106, at art. 42(1)

[133] Rome Statute, supra Note 106, at art. 14.

[134] Rome Statute, supra Note 106, at art. 13(b).

[135] Rome Statute, supra Note 106, at art. 15(1).

[136] Rome Statute, supra Note 106, at art. 43(2).

[137] Rome Statute, supra Note 106, at art. 43(4).

[138] Rome Statute, supra Note 106, at art. 43(5).

[139] Rome Statute, supra Note 106, at art. 43(1).

[140] Rome Statute, supra Note 106, at art. 43(6).

[141] Rome Statute, supra Note 106, at art. 14.

[142] Rome Statute, supra Note 106, at art. 15.

[143] Rome Statute, supra Note 106, at art. 58(1).

[144] Rome Statute, supra Note 106, at art. 59(1).

[145] Rome Statute, supra Note 106, at art. 61(7)(a).

[146] Rome Statute, supra Note 106, at art. 1.

[147] Rome Statute, supra Note 106, at art. 77(1).

[148] Rome Statute, supra Note 106, at art. 81(1)(b).

[149] 18 U.S.C.A. § 2340(1), italics added by author.

[150] Id.

[151] CAT, supra note 8, at art. 1(1).

[152] War Crimes Act, 18 U.S.C.A. § 2441(c)(1) (West 2006).

[153] 18 U.S.C.A. § 2441(c)(3).

[154] 18 U.S.C.A. § 2441(d).

[155] 18 U.S.C.A. § 2441(d)(1).

[156] See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

[157] Military Commissions Act of 2006, Pub. L. No. 109-366, § 6(a), 120 Stat. 2600, 2632-33 (2006).

[158] Military Commissions Act § 6(a)(3).

[159] Military Commissions Act § 3 § 950v(b)(12)(A).

[160] Military Commissions Act § 6(a)(2).

[161] Military Commissions Act § 6 (a)(3)(A).

[162] Id.

[163] Military Commissions Act § 3 § 950v(b)(12)(A).

[164] Barry F. Lowenkron, Opening Statement for US Hearing at Committee Against Torture, U.S. Department of State (May 5, 2006), http://state.gov/g/drl/rls/68558.htm.

[165] Conclusions and Recommendations of the Committee Against Torture, U.S. Department of State 3 (May 18, 2006), www.state.gov/documents/organization/133838.pdf [hereinafter CAT Report].

[166] CAT Report, supra note 165, at 4.

[167] Id.

[168] CAT Report, supra note 165, at 5.

[169] CAT Report, supra note 165, at 6.

[170] United States Response to Specific Recommendations Identified by the Committee Against Torture, U.S. Department of State 1 & 3, http://www.state.gov/documents/organization/100843.pdf (last visited Dec. 3, 2011) (hereinafter CAT Response).

[171] CAT Response, supra Note 170, at 2.

[172] Exec. Order No. 13440, 72 Fed. Reg. 40707 (July 20, 2007).

[173] Exec. Order No. 13491, 74 Fed. Reg. 4893 (Jan. 22, 2009).

[174] Fact Sheet: New Actions on Guantanamo and Detainee Policy, The White House (Mar. 7, 2011), http://whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy.

Download PDF of this article.