Monday, December 1, 2008

Cheat Sheet for Eric Holder: Torture and Jus Cogens

News item today:
(Reuters) - President-elect Barack Obama on Monday named former deputy attorney general Eric Holder as his choice to be Attorney General, the top U.S. law enforcement official.
The following can be bookmarked by Holder and his new team. No thanks necessary; just use it.

The video is of testimony by Marjorie Cohn of the National Lawyers Guild before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee in May, 2008. An adapted transcript can be read in full here.

The United States has always prohibited the use of torture in our Constitution, laws executive statements and judicial decisions. We have ratified three treaties that all outlaw torture and cruel, inhuman or degrading treatment or punishment. When the United States ratifies a treaty, it becomes part of the Supreme Law of the Land under the Supremacy Clause of the Constitution....

n Hamdan v. Rumsfeld, the Supreme Court rejected the Bush administration's argument that Common Article 3 doesn't cover the prisoners at Guantánamo. Justice Kennedy wrote that violations of Common Article 3 are war crimes.

We have federal laws that criminalize torture.

The War Crimes Act punishes any grave breach of the Geneva Conventions, as well as any violation of Common Article 3. That includes torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States.

The U.S. Army Field Manual's provisions governing intelligence interrogations prohibit the "use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind." Brainwashing, mental torture, or any other form of mental coercion, including the use of drugs, are also prohibited. Military personnel who mistreat prisoners can be prosecuted by court-martial under provisions of the Uniform Code of Military Justice. These include conspiracy, cruelty and maltreatment, murder, manslaughter, maiming, sodomy, and assault.

In Filartiga v. Peña-Irala, the Second Circuit declared the prohibition against torture is universal, obligatory, specific and definable. Since then, every U.S. circuit court has reaffirmed that torture violates universal and customary international law. In the Paquete Habana, the Supreme Court held that customary international law is part of U.S. law.
Under Article 53 of the Vienna Convention, a jus cogens norm is:
"a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."
In Al-Adsani v. United Kingdom, the European Court of Human Rights ruled unamimously that "the prohibition of torture has achieved the status of a peremptory norm in international law," that is, a jus cogens. (See Al-Adsani v. United Kingdom (No.2) (35763/97) European Court of Human Rights 21 November 2001 para 61. -- Note, the ruling was disappointing in other ways, as not allowing that States were subject under this jus cogens re torture to civil prosecution. The vote was narrow, and few would consider the matter settled.)

There have been other serious international decisions made concerning enforcement of the jus cogens crimes, such as the war crimes committed during the Yugoslavian conflict of the early 1990s. An ad hoc tribunal was established by the United Nations in 1993, and set up at The Hague. Theodor Meron was a U.S. judge elected to the court who served from 2001 to 2007. The U.S. cannot argue it is against such a tribunal. NATO has, by its own account, "provided the finance to set up the Tribunal... are amongst the majority financiers."
The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.[10] It also stated that every State is entitled "to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction."[11] Therefore, there is universal jurisdiction over torture. The rationale for this is that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."[12]

#10 Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
#11 Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)
#12 Janis, M. and Noyes, J. International Law": Cases and Commentary (3rd ed.), Prosecutor v. Furundžija, Page 148 (2006)
There is far more than probable cause to prosecute major figures of the Bush Administration, the Pentagon, and the CIA (and possibly DIA) for crimes against humanity, such as starting an aggressive war, and implementation of torture and abusive, inhumane treatment of prisoners. There is ample legal precedent to charge these individuals. If we do not do it, it should be undertaken by another willing nation.

Use the above information wisely, Mr. Holder. The nation awaits justice. The world awaits justice. In the age of the Internet, there is no hiding from responsibility. You know what you have to do. Political expediency will be no excuse to forego the necessary prosecutions.

Addentum: A tardy H/T to Uncle $cam for the link to Ms. Cohn's video testimony!

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