The Relevance of International Law to the Domestic Decision on Prosecutions for Past Torture

The US, as a champion of human rights abroad, has often been skeptical and even critical when other states have granted de facto amnesty allowing impunity for gross violations of human rights. Nonetheless, some now argue that the US should turn a blind eye to the evidence indicating that under the Bush Administration US government officials formulated and implemented a policy of torture. Naturally, arguments about US national security have been central to the debate. The CIA’s own reports insist that enhanced interrogation techniques have been effective in yielding valuable information vital to the national security of the United States, but the utility of torture, is subject to question. Complicated though it may be, the debate over whether to prosecute officials for past acts of torture is a very important discussion to have. Unfortunately, it is being conducted on an unduly narrow basis. It is true that torture violates US law and would be the essential basis of any such prosecution. This might suggest that the decision is a matter solely within the domestic jurisdiction of the US. But in addition to US domestic laws the US has obligations under international law regarding the crime of torture. These too are relevant to this important debate. Enlarging the US internal debate to include relevant aspects of international law should not be objectionable, because international torture norms are essentially US core norms. Their application to the US helps to reinforce the values and processes of our own Constitution. The prohibition of torture under international law mirrors the prohibition of cruel or unusual punishment under the 8th Amendment of the US Constitution, while the Torture Convention’s mandatory enforcement regime complements the rule of law under the US Constitution by requiring the investigation and prosecution of those who commit torture. The shocking history of US torture policy under the Bush Administration demonstrates that at times even the US needs external pressure to respect its own values. Successful prosecution now may be difficult due to reliance upon (subsequently withdrawn) opinions by the Justice Department’s Office of Legal Counsel (OLC) which suggested that many acts of torture, such as water-boarding were indeed legal. Despite this difficulty, US failure to pursue the option of prosecution would only compound any previous US violations of the Torture Convention