U.S. Delegation Asserts Article 16 of Convention Against Torture Applies Outside U.S. Territority in Certain Circumstances, but Law of Armed Conflict "Takes Precedence" In Situations of Armed Conflict

By John Bellinger
Wednesday, November 12, 2014, 2:10 PM

As previewed by Charlie Savage in the New York Times this morning, the U.S. delegation appeared before the Committee Against Torture in Geneva today and announced a modest but important change in the U.S. Government position regarding extraterritorial application of Article 16 of the Convention Against Torture (which prohibits cruel, inhuman, and degrading treatment in "territory under U.S. jurisdiction").  At the same time, the U.S. delegation reaffirmed that U.S. military operations are governed by the laws of war, not the CAT, although the U.S. delegation carefully avoided using the fraught phrase lex specialis.  As I explain below, however, this should not necessarily be viewed as a concern from a human rights perspective.

In her opening statement, Acting Legal Adviser Mary McLeod stated that the obligations in Articles 2 and 16 of the CAT “extend to certain areas beyond the sovereign territory of the State Party, and more specifically to ‘all places that the State Party controls as a governmental authority.’” She added that “We have determined that the United States currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. registered ships and aircraft.”

This is a welcome clarification. As Harold Koh had noted in his memo on the CAT, former Legal Adviser Abe Sofaer and I had both taken the position that Article 16 of the CAT applies outside the territory of the United States in some circumstances. Harold quoted from a memorandum I had written to the Secretary of State in 2005 arguing that Article 16 should apply in Guantanamo. I would add that the newly stated U.S. position does not reverse what the U.S. delegation told the CAT committee in 2006. Then, the U.S. delegation did not state that Article 16 does not apply outside U.S. jurisdiction. Instead, the U.S. delegation told the CAT that “the U.S. does not accept that de facto control equates to territory under its jurisdiction.” The U.S. Government position announced today that Article 16 applies to “all places that the State Party controls as governmental authority” appears to reaffirm that the U.S. continues to believe that de facto control does not trigger extraterritorial obligations under Article 16, but that de jure control will do so.

While acknowledging for the first time that Article 16 applies outside the United States in some circumstances, the U.S. delegation was careful to state that “the law of armed conflict is the controlling body of law with respect to the conduct of hostilities and the protection of war victims.” A statement issued by the NSC spokesman today adds some additional gloss on this point: “Although the more specialized laws of war—which contain parallel categorical bans on torture and other inhumane treatment in situations of armed conflict—take precedence over the Convention where the two conflict, the laws of war do not generally displace the Convention’s application.” In other words, the U.S. Government has reaffirmed that the law of armed conflict, or international humanitarian law, is the lex specialis applicable to U.S. military operations. Although the U.S. was criticized (and I was personally pilloried) for stating this same position in 2006, this was a longstanding U.S. view. Indeed, as I noted in this Lawfare post last month, Harold Koh had stated in his memorandum on the extraterritorial application of the ICCPR that “U.S. military operations in the conduct of the armed conflict with al Qaida (and associated forces) in Afghanistan and elsewhere are properly governed by relevant standards of international humanitarian law, not international human rights law.”

The U.S. delegation also added today that “a time of war does not suspend operation of the Convention Against Torture, which continues to apply even when a State is engaged in armed conflict.” This is clearly correct, and the U.S. delegation had made the same statement in 2006.

Finally, I should note that the continuing U.S. position that the law of armed conflict takes precedence over the CAT as applied to U.S. military operations should not necessarily be problematic from a human rights perspective. When it gave its consent to the CAT in 1994, the Senate (then with a Democratic majority) included a reservation that the cruel, inhuman, and degrading treatment prohibited by Article 16 was the same treatment already prohibited by the Fifth, Eighth, and Fourteenth Amendments of the Constitution. Thus, U.S. obligations under Article 16 are limited by U.S. domestic law.  In contrast, U.S. obligations under Common Article 3 of the Geneva Conventions (which also prohibits cruel, humiliating, or degrading treatment, or outrages on the personal dignity)  are subject to no such reservation.