Chapter 13: Domestic Remedies for Human Rights Violations ...
CHAPTER 13: DOMESTIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS
BY THE UNITED STATES(
A. INTRODUCTION 3
1. Hypothetical 3
2. Approaches to the Application of International Law in U.S. Courts 6
Domestic Law 6
International Law Incorporated into National Statute 7
The Use of Treaties in U.S. Courts 8
Self-Executing Treaties 9
Interpretation 14
Reservations 14
Customary International Law 15
Jus Cogens 16
Interpreting U.S. Law in Light of International Principles and Practice 19
“A Decent Respect to the Opinions of [Human]kind”: The Value 23
of a Comparative Perspective in Constitutional Adjudication,
Justice Ruth Bader Ginsburg
3. Questions 25
B. FRAMEWORK FOR ANALYZING THE APPLICABILITY OF 27
INTERNATIONAL PRINCIPLES AND PRACTICE
1. Is There an International Armed Conflict Between High Contracting 29
Parties?
2. Is There a Partial or Total Occupation of Territory Governed by the 30
Geneva Conventions?
3. Who is Afforded Protected Person Status? 31
4. What Rights and Protections are Afforded to Those Protected Persons ? 32
5. Are Persons Protected, and What Protections Under Common Article 3? 33
6. Does International Humanitarian or Human Rights Law Provide 34
Protections for Victims of Extraordinary Rendition?
7. Is a Remedy for Human Rights Abuses Provided by Customary 37
International Law
C. FEDERAL STATUTES CONCERNING EXTRAORDINARY RENDITION 38
1. Implementing Legislation 38
2. The Habeas Corpus Statute 39
3. The Torture Statute 41
D. ADMINISTRATION SUPPORT FOR EXTRAORDINARY RENDITION 42
1. Administration Justifications for Extraordinary Rendition 42
2. Goldsmith Memorandum 43
E. INTERPRETIVE TOOLS FOR IMPLEMENTING THE GENEVA 47
CONVENTIONS AND THE CONVENTION AGAINST TORTURE
1. Geneva Civilian Convention Commentary 47
2. Iraqi Immigration Laws 49
3. Deportation of Jews During World War II 50
4. Court Decisions 51
a. Regarding Judicial Enforcement of the Convention Against 52
Torture
b. Committee Against Torture 54
c. International Court of Justice 55
F. ACTING ON INTERNATIONAL LAW DOMESTICALLY 56
Judge Hans Linde, Comments 56
CHAPTER 13: DOMESTIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS BY
THE UNITED STATES
A. INTRODUCTION
Chapter 14 discusses the use of international law in federal courts in civil suits to remedy human rights violations under the Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA), not occurring directly as a result of actions of the U.S. government. While the United States has been a leader in establishing universal civil jurisdiction under the ATCA and TVPA over human rights abuses by foreign officials and other actors, as discussed in chapter 14 infra, it arguably lags behind other nations in its receptivity to international human rights as a guide to or constraint upon the conduct of its own officials.
This chapter uses the U.S. practice of extraordinary rendition as an opportunity to illustrate how international human rights law may be used by U.S. courts to influence enforcement of international human rights norms with regard to the conduct of U.S. officials both inside and outside of U.S. territory.
1. Hypothetical
After the attacks of September 11, 2001, the United States attempted to strengthen its efforts in pursuing alleged terrorist actors by engaging in a covert policy known as “extraordinary rendition.” This term was originally a euphemism used to describe an officially recognized but covert policy whereby the United States Government or its agents would capture in a foreign country a person accused of a crime in order to bring that person to justice in the United States. This policy was implemented as a means of avoiding some of the problems that are associated with international extradition, such as the absence of extradition treaties, delays in effecting extradition, or other barriers to extradition.
The scope of extraordinary rendition has since expanded to include the abduction of terror suspects not in order to bring them to justice in the United States (as would be the case for extradition and the extralegal alternatives to extradition discussed supra), but rather to send them to a third country.[1] The procedure typically involves a person who is not formally charged with any crime in the United States. Instead, the person is seized abroad and transported to a third country.[2] Although the total number of extraordinary renditions to date remains unclear, there is a wide consensus that the program has accelerated since September 11, 2001.[3] In part the acceleration can be attributed to expedited procedures approved by President Bush, affording additional flexibility to the CIA in transferring terror suspects.[4] For example, while a facade of rendering suspects to justice in countries where they are accused of crimes may be maintained, sometimes charges are brought only after the CIA has seized a suspect and requested cooperation. Egypt appears to be the most frequently-used receiving country, and other participants include Jordan, Morocco, Saudi Arabia, Syria, and Uzbekistan.
Presume that formal and internationally recognized U.S. occupation of Iraq began in May 2003 and lasted at least until the end of June 2004. In June 2003, Hiwa Abdul Rahman Rashul, an Iraqi citizen and a suspected member of the Iraqi Al-Ansar terrorist group, was captured by Kurdish soldiers in Iraq and turned over to U.S. Central Intelligence Agency officers. In July 2004 the CIA removed him to Afghanistan for interrogation. It is unclear whether he was ever in U.S. custody in Afghanistan, or whether he remains in Afghanistan today.
In August 2003, Egyptian national Mohammed Fouad Qassem was captured by coalition forces in Iraq. It is unclear when he entered Iraq, but U.S. officials suspect he entered the country sometime in June 2003. In September 2003, U.S. officials removed Qassem to Egypt, where he is in custody of the Egyptian government.
In October 2003, Syrian national Talaat Haydar Zammar was captured by U.S. forces in Iraq. He had been living in Iraq lawfully for five years, and his passport indicates that he entered the country lawfully. In January 2004, U.S. officials are reported to have removed Zammar from Iraq, but his whereabouts are unknown.
Relatives of Rashul, Qassem, and Zammar seek your assistance. They fear that the men are being tortured while in custody.
The U.S. government contends that none of the men is presently in U.S. custody. Additionally, the U.S. government maintains that Qassem and Zammar were illegal aliens not lawfully present in Iraq at the time of their removal. U.S. officials state that Rashul has only been removed from Iraq temporarily, and that the purpose of the removal was to facilitate interrogation.
The following information may be relevant to consideration of some of the questions listed below:
Afghanistan, Egypt, Iraq, Syria, and the United States are all High Contracting Parties to the 1949 Geneva Conventions. Afghanistan, Egypt, Syria, and the United States are States Parties to the Convention Against Torture; Syria became a State Party to the Torture Convention on August 19, 2004.
During the U.S.-led war in Iraq in early 2003, Afghanistan was a member of the “coalition of the willing” providing public support for the United States. Egypt and Syria stood with other Arab nations and did not openly express support for the United States.
In September 2002, Syrian-born Canadian citizen Maher Arar was returning home to Ottawa from a family vacation in Tunisia. While transferring flights at New York’s JFK airport, he was detained by U.S. officials, who suspected he was an al Qaeda supporter. They held Arar for one week, and then transported him to Syria. Syrian authorities detained Arar for one year; he was charged with belonging to a religious group and ultimately was acquitted for lack of evidence. A Canadian commission on the Arar case requested Professor Stephen J. Toope to investigate Arar’s treatment while in Syria. Professor Toope concluded that Arar’s treatment “constituted torture as understood in international law.” Arar has filed suit against former U.S. Attorney General John Ashcroft and others under the Torture Victims Protection Act (TVPA). Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006). In dismissing Arar’s claims, the district court held that the TVPA only extended to U.S. citizens. Id. at 263. Arar’s claim that his substantive due process rights were violated when he was removed to Syria was dismissed because of “national security and foreign policy considerations.” Id. at 287.
When U.S. citizen John Walker Lindh was detained in Afghanistan in late 2001, U.S. Defense Secretary Donald Rumsfeld instructed U.S. military officials to “take the gloves off” for Lindh’s interrogations. A 2002 plea agreement bars Lindh from speaking about the conditions under which he was held in Afghanistan and at other overseas locations. Numerous detainees report that they were tortured by U.S. forces in Afghanistan, and as of July 2004, the U.S. military is investigating the deaths of at least five Afghans who died while in U.S. custody. In his book Torture and the Truth (2005), Mark Danner states that procedures violating established interrogation methods originated in Afghanistan and subsequently were applied at Guant(namo and in Iraqi prisons such as Abu Ghraib. Afghan President Hamid Karzai has demanded an independent investigation of conditions at the U.S. airbase at Bagram. In 2004, the Afghanistan Human Rights Commission accused the Afghani Interior Ministry of torturing detainees. According to the U.S. State Department, Afghani officials used torture in prisons in 2003 and 2004, and there are “secret or informal detention centers” in Afghanistan. In September 2006, the Bush administration admitted that the CIA made use of secret overseas prisons for the detention and interrogation of prisoners. See David Johnston, At a Secret Interrogation, Dispute Flared Over Tactics, N.Y. Times, Sept. 10, 2006, at A1.
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NOTES
For further information about the practice of extraordinary rendition:
Association of the Bar of the City of New York & Center for Human Rights and Global Justice, Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions,” 60 The Record 13 (2005):
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events of Maher Arar: Analysis and Recommendations (2006)
Rajiv Chandrasekaran & Peter Finn, U.S. Behind Secret Transfer of Terror Suspects, Wash. Post, Mar. 11, 2002, at A1:
Stephen Grey, U.S. Accused of ‘Torture Flights’, Sunday Times (London), Nov. 14, 2004, at 24:
Douglas Jehl, Pentagon Seeks to Shift Inmates from Cuba Base, N.Y. Times, Mar. 11, 2005, at A1:
Douglas Jehl & David Johnston, Rule Change Lets CIA Freely Send Suspects Abroad, N.Y. Times, Mar. 6, 2005, at 1:
Danielle Knight, Outsourcing a Real Nasty Job, U.S. News & World Rep., May 23, 2005, at 34:
Jane Mayer, Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program, New Yorker, Feb. 14, 2005, at 106:
John Parry, The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees, 6 Melb. J. Int’l L. 516 (2006);
John Parry, The Lost History of International Extradition Litigation, 43 Va. J. Int’l L. 93 (2002);
Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations; ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, Wash. Post, Dec. 26, 2002, at A1:
Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition under International Law, 37 Case W. Res. J. Int’l L. 309 (2006);
Craig Whitlock, Europeans Investigate CIA Role in Abductions; Suspects Possibly Taken to Nations that Torture, Wash. Post, Mar. 13, 2005, at A1;
John Yoo, Transferring Terrorists, 79 Notre Dame L. Rev. 1183 (2004).
2. Approaches to the Application of International Law in U.S. Courts
Courts have pursued several approaches to the application of international law. Initially, a court will look to whether an issue can be properly resolved by domestic law, with no need for reference to international law. In some cases, precepts of international law have been incorporated into U.S. law by statute. Article VI, § 2 of the Constitution mandates respect for treaties as the supreme law of the land, and courts will often be called upon to interpret and apply treaty provisions to the matter at hand. Even in the absence of a relevant treaty, courts may still rely on customary international law or jus cogens norms when deciding a case. Finally, courts may interpret unclear provisions of domestic law in light of evolving international norms.
In thinking about the hypothetical case that accompanies this chapter as to extraordinary rendition, the student should consider the arguments that can be made under each methodology, and how each of these different approaches might affect the resolution of that issue.
a. Domestic Law
Many provisions of federal and state constitutions and statutes protect civil liberties and civil rights. Usually U.S. law extends equal or greater protection to individual rights than is required by international law. In some contexts, however, persons subject to the jurisdiction of the United States would benefit if pertinent international norms were implemented by U.S. legislatures, administrative agencies, and courts.
Federal criminal law and a number of statutes have long forbid the execution of juvenile offenders, such that no reference to international law is necessary because the issue before the court can be properly resolved by relying only on domestic law. Prior to the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005), which held that the 8th Amendment forbids the imposition of the death penalty on juvenile offenders, twelve states forbid the execution of offenders who committed an offense before eighteen years of age. In addition, there is no death penalty at all in 12 states and the District of Columbia.[5] Further, federal criminal law forbids the execution of juvenile offenders.[6] Hence, accused juvenile offenders in federal courts and in any of those states would not need to appeal to international law with regard to the execution of juvenile offenders.
b. International Law Incorporated into National Statute
In a few instances, precepts of international law have been formally adopted by the U.S. government and made a part of domestic law. One such example is the Refugee Act of 1980, which brought U.S. law into compliance with the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force Oct. 4, 1967. The statutory definition of “refugee” was derived from the Protocol and the associated Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force Apr. 22, 1954. A “refugee” is defined by these international agreements, and by the Immigration and Naturalization Act § 101(a)(42), as someone who is outside of his or her country of nationality and is unable or unwilling to return because of a fear of persecution because of race, religion, nationality, political opinion, or membership in a particular group.
In Hamdan v. Rumsfeld,[7] the U.S. Supreme Court relied upon the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801, to reverse the decision of the Court of Appeals for the D.C. Circuit which had held that the Geneva POW Convention did not confer a right to enforce its provisions in court.[8] This case involved a Yemeni national who was captured during the hostilities in Afghanistan and was transferred to Guant(namo Bay in 2002. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission the President convened lacked the authority to try because neither an act of Congress nor the common law of war supports trial by this commission for the crime of conspiracy, and the procedures adopted by the President violate military and international law.
In reversing the decision of the Court of Appeals, the Supreme Court relied on the Geneva Conventions, holding that the procedures adopted by the military commission did not meet the requirements of international law. The UCMJ conditions the President’s use of military commissions “on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the ‘rules and precepts of the law of nations,’ -- including, inter alia, the four Geneva Conventions signed in 1949.”[9] Hamdan identified procedural disparities between the military commission convened to try him and those that would be utilized at a regular court-martial.[10] Further, the Court relied on Common Article 3, which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” in holding that the military commission’s procedures were insufficient.[11] Consistent with the Supreme Court’s holding in Hamdan, the Senate Armed Services Committee endorsed legislation that would give suspected terrorists more legal protections, including the right to see classified evidence that would be used against them. David Stout, Senate Panel Defies Bush on Detainee Bill, N.Y. Times, Sept. 14, 2006.
In late September 2006, Congress adopted the Military Commissions Act.[12] This legislation responds to the Supreme Court’s holding in Hamdan. Under this law, a military commission established pursuant to this statute would afford “all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.”[13] Additionally, the act prohibits a defendant from invoking the Geneva Conventions “in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces . . ., is a party, as a source of rights in any court of the United States or its States or territories.”[14] Further, the act gives the President the authority to “to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.”[15]
Another example of international law being incorporated into U.S. law by statute is the ATCA. The ATCA was included in the Judiciary Act of 1789, and allowed individuals to sue in tort for violations of the “law of nations.” This statute is discussed in greater detail in Chapter 14, infra.
c. The Use of Treaties in U.S. Courts
If U.S. law cannot be interpreted as consistent with international law or does not incorporate international principles, the Constitution still mandates respect for treaties. In its early years, the United States implemented international law at least partially as a means to establish its legitimacy among the leading world powers, then consisting mostly of European states. The inability of the new nation to comply with its treaty obligations (for example, under the 1783 Treaty of Paris that resolved the Revolutionary War and inter alia protected the vested property rights of British loyalists), because of resistance by state legislatures and courts, was a concern among participants at the 1787 Constitutional Convention. Article VI, § 2 of the United States Constitution establishes:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
A treaty ratified by the United States is part of the supreme law of the land, equal in dignity to federal statutes. Conflicts between treaty clauses and existing law are resolved according to three rules. First, a treaty will not have domestic effect if it infringes certain clauses of the U.S. Constitution. Reid v. Covert, 354 U.S. 1, 16–17 (1957). Second, if a treaty and a federal statute conflict, the more recent prevails. Chinese Exclusion Case, 130 U.S. 581, 598–99 (1889). Third, if a treaty and state law conflict, the treaty controls. Asakura v. City of Seattle, 265 U.S. 332 (1924); Zschernig v. Miller, 389 U.S. 429, 440–41 (1968); Clark v Allen, 331 U.S. 503, 508 (1947); see also Missouri v. Holland, 252 U.S. 416, 433–35 (1920) (validity of treaty not undermined by possible infringement on states’ rights under Tenth Amendment). Before applying a treaty, courts must: (1) determine whether certain treaty provisions are self-executing; (2) interpret the language of the treaty; and (3) consider the effect of reservations made when the treaty was adopted.
i. Self-Executing Treaties
Though the Constitution states that treaties are the supreme law of the land, courts have developed a doctrine that only self-executing clauses are judicially enforceable. Sometimes the rule is phrased in the alternative: treaty clauses are enforceable if they are either self-executing or have been implemented by legislation. Over the years, courts have used, and commentators have advocated, various standards for determining the extent to which a treaty ought to be considered self-executing. The Supreme Court introduced the requirement of self-execution in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 254 (1829). It declared that a treaty clause is self-executing and hence “equivalent to an act of the legislature, whenever it operates by itself without the aid of any legislative provision.” Foster held the treaty to be non-self-executing, on the assumption that the parties anticipated a need for implementing legislation to make the obligations sufficiently definite to be judicially enforceable. Four years later, however, the Court found the same bilateral treaty to be self-executing, based upon a review of the Spanish text and the history of negotiations. United States v. Percheman, 32 U.S. (7 Pet.) 51, 88 (1833).
Subsequent cases have focused on the intent of the parties. See, e.g., Cook v. United States, 288 U.S. 102, 119 (1933). In Frolova v. U.S.S.R., 761 F.2d 370 (7th Cir. 1985), the court compiled this list of factors to be consulted in determining whether a treaty provision is self-executing:
(1) the language and purposes of the agreement as a whole;
(2) the circumstance surrounding its execution;
(3) the nature of the obligations imposed by the agreement;
(4) the availability and feasibility of alternative enforcement mechanisms;
(5) the implications of permitting a private right of action; and
(6) the capability of the judiciary to resolve the dispute.
Id. at 373 (structure altered). For a similar list, see People of Saipan v. U.S. Department of Interior, 502 F.2d 90, 97 (9th Cir. 1974). In Jogi v. Voges, the Seventh Circuit relied on the first three of these factors to hold that Article 36 of the Vienna Convention is self-executing and confers an individual right to consular notification. 425 F.3d 367, 377, 384 (7th Cir. 2005). But see United States v. Emuegbunam, 268 F.3d 377, 391 (6th Cir. 2001) (“[T]he Vienna Convention does not create rights individually enforceable in the federal courts.”); United States. v. Jiminez-Nava, 243 F.3d 192, 198 (5th Cir. 2001) (holding that the Vienna Convention does not create judicially enforceable rights). The Court concluded that because the parties’ intent was clear from the treaty’s language, it was unnecessary to inquire into the remaining factors. Jogi, 425 F.3d at 377. In multilateral treaties, however, parties rarely make clear the process by which they are expected to incorporate the treaty into national law. Parties to the same treaty may have varied traditions concerning the incorporation of treaties into domestic law and the status of treaties within the hierarchy of internal law.[16]
The Restatement (Third) suggests that “the intention of the United States determines whether an agreement is to be self-executing in the United States or should await implementing legislation.” Restatement (Third), supra, § 131, comment h, at 58. If the intent is unclear, courts should look to “any statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole for approval, and of any expression by the Senate or by Congress in dealing with the agreement.” Id. In considering the U.S. declaration that provisions of a treaty are not self-executing, courts rather than the Senate ordinarily decide when treaty provisions are self-executing. See Anne Bayefsky & Joan Fitzpatrick, International Human Rights Law in United States Courts: A Comparative Perspective, 14 Mich. J. Int’l L. 1, 42–47 (1992)
When the Senate articulated its advice and consent regarding the Geneva Conventions in 1955, it made no explicit statement about self-execution. In looking to the intent of the Senate in consenting to the ratification of the Geneva Conventions, the District Court for the District of Columbia found that the Senate in 1955 carefully considered what legislation would be required to give effect to the provisions of the conventions, and determined that only four provisions required implementing legislation.[17] The court also noted that when a concurring opinion from the D.C. Circuit Court in 1984 suggested that persons could not be prosecuted for grave violations of the Conventions, Congress responded by enacting the War Crimes Act.[18] The court concluded that the legislative branch had confirmed that the Geneva Conventions are intended to be the law of the land, enforceable by the courts. On appeal, the Supreme Court noted that in as much as the Geneva Conventions are a part of the law of war, they do confer rights that are enforceable in U.S. courts.[19]
Self-executing treaty provisions were also at issue in the “Full Committee/OPEN” session of the Senate Committee on Foreign Relations on May 11, 1994. Conrad Harper, Legal Adviser of the State Department, testified as follows (regarding the proposed ratification of the Convention on the Elimination of All Forms of Racial Discrimination):
[W]e have submitted a proposed declaration indicating that the [Racial Discrimination] Convention’s provisions are not self-executing. . . . By making clear that this convention is not self-executing, we ensure that it does not create a new or independently enforceable private cause of action in U.S. courts. . . .
As was the case with the earlier treaties, existing U.S. law provides extensive protection and remedies against racial discrimination sufficient to satisfy the requirements of the present convention. In addition, federal, state and local laws already provide a comprehensive basis for challenging discriminatory statutes, regulations and other governmental actions in court, as well as certain forms of discriminatory conduct by private actors. There is thus no need for the establishment of additional causes of action to enforce the requirements of the convention.
Where the treaty is not the basis of the asserted cause of action, therefore, the declaration that a treaty is not self-executing may be inapplicable. Other situations might include the defensive reliance on treaty rights (as in this chapter’s problem, and in other penal, extradition, or enforcement contexts); reliance on the treaty in administrative proceedings; and use of the treaty as a substantive rule of decision in judicial proceedings where the cause of action is supplied by another law (for example, 42 U.S.C. §1983 or the Administrative Procedure Act). Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695 (1995).
In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court addressed a declaration by the Senate that a treaty is not self-executing in reviewing a suit brought by a Mexican national alleging violation of his rights under the Alien Tort Claims Act and the International Covenant on Civil and Political Rights when he was abducted and transferred to the United States to stand trial. In dictum, the Court stated:
[A]lthough the [International] Covenant [on Civil and Political Rights] does bind the United States as a matter of international law, the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts. Accordingly, Alvarez cannot say that the [Universal] Declaration [of Human Rights] and Covenant themselves establish the relevant and applicable rule of international law.
Id. at 735. While not essential to the Court’s holding, this passage suggests that an explicit Senate statement that a treaty is not self-executing may present a bar to enforcing a treaty obligation in federal courts.
Some scholars have argued that a U.S. legislative limitation that declares a treaty to be non-self-executing should not be given effect when it runs counter to the object and purpose of the treaty. See Stefan A. Riesenfeld & Frederick M. Abbott, The Scope of U.S. Senate Control Over the Conclusion and Operation of Treaties, 67 Chi.-Kent L. Rev. 571 (1991). Riesenfeld and Abbott observe that treaties are self-executing not by legislative declaration but by their terms. A declaration that a treaty is non-self-executing when its terms indicate otherwise, then, is not binding on the courts. “Whether a treaty requires municipal implementing legislation and is intended to confer rights directly on individuals is a question of the mutual intent of the parties to the treaty, to be determined by the language of the treaty and other indicia of intent.” Id. at 608. Further, Professor Riesenfeld proposed that a treaty ought to be deemed self-executing if it “(a) involves the rights and duties of individuals; (b) does not cover a subject for which legislative action is required by the Constitution; and (c) does not leave discretion to the parties in the application of the particular provision.” Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and GATT: A Notable German Judgment, 65 Am. J. Int’l L. 548, 550 (1970); see also Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 Am. J. Int’l L. 892, 896 (1980).
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NOTES
For further reading on self-executing treaties, see:
Ann Althouse, A Response to Professor Woolhandler’s “Treaties, Self-Execution, and the Public Law Litigation Model,” 42 Va. J. Int’l L. 757 (2002);
Khaldoun A. Baghdadi, Comment, Apples and Oranges – the Supremacy Clause and the
Determination of Self-Executing Treaties: A Response to Professor Vazquez, 20 Hastings Int’l & Comp. L. Rev. 701 (1997);
Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution,
55 Stan. L. Rev. 1557 (2003);
Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent,
149 U. Pa. L. Rev. 399 (2000) (arguing that human rights treaties should not be self-executing);
Rodrigo P. Correa, International Treaties under the Spell of Brown, yale.edu/lawweb/lawfac/fiss/ercorrea.pdf;
Connie de la Vega & Jennifer Brown, Can a United States Treaty Reservation Provide a Sanctuary for the Juvenile Death Penalty?, 32 U.S.F. L. Rev. 735, 763–64 (1998) (arguing that self-executing treaties doctrine does not apply to the Civil and Political Covenant);
Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as the “Supreme Law of the Land”, 99 Colum L. Rev. 2095 (1999);
Jack Goldsmith, Should International Human Rights Trump US Domestic Law?, 1 Chi. J. Int’l L. 327 (2000);
David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075 (2000);
Christopher Harland, The Status of the International Covenant on Civil and Political Rights (ICCPR) in the Domestic Law of State Parties: An Initial Global Survey Through UN Human Rights Committee Documents, 22 Hum. Rts. Q. 178 (2000) (discussing, in part, in what countries the Civil and Political Covenant is self-executing);
Jean-Marie Henckaerts, Self-Executing Treaties and the Impact of International Law on National Legal Systems: A Research Guide, 26 Int’l J. Legal Info. 56 (1998);
Caleb Nelson, The Treaty Power and Self-Execution: A Comment on Professor Woolhandler’s Article “Treaties, Self-Execution, and the Public Law Litigation Model,” 42 Va. J. Int’l L. 757 (2002);
Jordan J. Paust, Customary International Law and Human Rights Treaties Are Law of the United States, 20 Mich. J. Int’l L. 301 (1999);
Jordan J. Paust, Self-Executing Treaties, in International Law as Law of the United States 67 (2d ed. 2003);
John Quigley, United States Compliance with Human Rights Treaties: Problems and Prospects, 4 Contemp. Issues in L. 106 (1999);
Kristen B. Rosati, United Nations Convention Against Torture: A Self-Executing Treaty That Prevents the Removal of Persons Ineligible for Asylum and Withholding of Removal, 26 Denv. J. Int’l L. & Pol’y 533 (1998) (arguing that Article 3 of the Convention is self-executing);
Kenneth Roth, The Charade of US Ratification of International Human Rights Treaties, 1 Chi. J. Int’l L. 347 (2000);
David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129 (1999);
David Sloss, Ex Parte Young and Federal Remedies for Human Rights Treaty Violations,75 Wash. L. Rev. 1103 (2000);
David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1 (2002);
Carlos Manuel Vazquez, Response, Laughing at Treaties, 99 Colum. L. Rev. 215 (1999);
Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, (1995);
Ann Woolhandler, Treaties, Self-Execution, and the Public Law Litigation Model, 42 Va. J. Int’l L. 757 (2002);
John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999);
John C. Yoo, Treaties and Non-Self-Execution, 94 Am. Soc’y Int’l L. Proc. 47 (2000);
John C. Yoo, Rejoinder, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 Colum. L. Rev. 2218 (2000).
ii. Interpretation
Much like they must do with statutes, courts must also interpret the language of treaties to be consistent with the meaning of relevant statutes and case law. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”). In Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006), the Supreme Court interpreted Article 36 of the Vienna Convention on Consular Relations (Vienna Convention). In that case, Sanchez-Llamas, a Mexican national, exchanged gunfire with the police, shooting one officer in the leg. Id. at 2675-76. After Miranda warnings were administered, Sanchez-Llamas made several incriminating statements, but at no time was he advised that he could ask to have the Mexican consulate notified of his detention. Id. at 2676. Article 36 provides for consular notification if it is requested by the detainee, and that authorities should inform the detainee of his or her rights under the Vienna Convention. Id. at 2675. Sanchez-Llamas was convicted in state court, and his conviction was affirmed by Oregon’s appellate and supreme courts. Id. at 2767.
In an opinion written by Chief Justice Roberts, and joined by Justices Scalia, Thomas, Kennedy, and Alito, the court held that the Vienna Convention did not provide a suppression remedy under Article 36. Id. at 2674. The Court assumed, without deciding, that Article 36 does grant an individually enforceable right to consular notification. Id. at 2677-78. The Vienna Convention does not mandate specific remedies for violations of Article 36; rather, it leaves its implementation to domestic law. Id. at 2678. The Court held that since suppression is an “entirely American creation,” it would be:
implausible that other signatories to the Convention thought it to require a remedy that nearly all refuse to recognize as a matter of domestic law. There is no reason to suppose that Sanchez-Llamas would be afforded the relief he seeks here in any of the other 169 countries party to the Vienna Convention.
Id. at 2678.
iii.. Reservations
When the United States becomes party to an international agreement, it often does so with several limitations. The United States made several reservations when it adopted the Civil and Political Covenant. For example, the U.S. specifically reserved the right “to impose capital punishment on any person . . . duly convicted under existing or future laws . . . including such punishment for crimes committed by persons below eighteen years of age.”[20] Further, the U.S. reserved the right to “treat juveniles as adults,” notwithstanding provision in the Civil and Political Covenant to the contrary, and expressly declared that Articles one through twenty-seven are not self-executing.[21]
For a reservation to be valid, it must be consistent with the object and purpose of a treaty.[22] The Human Rights Committee expressed concern that several of the U.S. reservations to the Civil and Political Covenant violate the object and purpose of the treaty. In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court considered the argument that because the Senate in 1992 endorsed a Presidential reservation to the provision of the Civil and Political Covenant which prohibited the juvenile death penalty, there is no national consensus against capital punishment for juveniles. This reservation, the Court found, “at best provides only faint support” for the argument that there is no consensus against the juvenile death penalty. Id. at 567. See further discussion of the Roper case supra at 7.
d. Customary International Law
Courts may also look to customary international law when deciding an issue that is not covered by a treaty provision. Customary international law (then commonly referred to as the “law of nations”) was the subject of a significant amount of litigation during the nation’s first decades. The Constitution granted Congress the power to “define and punish . . . Offenses against the Law of Nations.”[23] In its earliest opinions the Supreme Court showed its respect for customary international law, recognizing that “an Act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains. . . .”[24]
The Supreme Court has declared that customary law is “part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.” The Paquete Habana, 175 U.S. 677, 700 (1900):
Where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
Id.; see also Garcia-Mir v. Meese, 788 F.2d 1446, 1454 (11th Cir. 1986) (holding that decisions by cabinet-level officials constitute controlling executive acts); accord Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1448 (5th Cir. 1993). More recently the Court acknowledged the “frequently reiterated” principle that federal common law is necessarily informed by international law. First National City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983).
Customary law should be accorded the same status as treaties under international law, see 1 Restatement (Third) of the Foreign Relations Law of the United States § 111 (1987). U.S. courts have upheld norms in the face of inconsistent state and local laws, and have tried to construe customary norms and federal statutes so as to give effect to both. When courts have found that a customary norm conflicts with a federal statute or executive act, however, they generally have given effect to the legislative or executive act even when the norm arguably crystallized after the act’s adoption. See Garcia-Mir 788 F.2d at 1453; United States v. Aguilar, 871 F.2d 1436, 1454 (9th Cir. 1989), amended August 14, 1989; American Baptist Churches v. Meese, 712 F. Supp. 756, 771–73 (N.D. Cal. 1989). Commentators have criticized those decisions on the ground that judicially enforceable norms should be accorded the same status as self-executing treaty clauses, that the later-in-time rule should prevail, and that executive acts should preempt customary norms only when the President exercises foreign affairs powers, i.e., as commander-in-chief or chief diplomat. See Frederic L. Kirgis, Jr., Federal Statutes, Executive Orders and “Self-Executing Custom,” 81 Am. J. Int’l L. 371, 371–75 (1987).
Sometimes a state has persistently objected to a developing norm of customary international law. Under the “persistent objector” doctrine, such a state cannot later be held to that norm. For example, as part of a reservation to the Civil and Political Covenant, the United States claimed to be a persistent objector to the developing norm of international law prohibiting the juvenile death penalty. In fact, the U.S. Government had not been persistent in its objection as that norm developed in drafting of various international human rights instruments, including the Fourth Geneva Convention[25], the Civil and Political Covenant[26], the American Convention on Human Rights[27], etc.[28] In addition, being a persistent objector does not always shield states from responsibility for certain international law violations. Once a precept of international law has achieved jus cogens status, persistent objection does not relieve a state of its obligation to comply with the norm.[29]
e. Jus Cogens
If a norm qualifies as jus cogens, that is a peremptory norm of international law, then a persistent objection, a reservation, or a “controlling executive or legislative act or judicial decision” does not excuse U.S. violation of that norm. The concept of jus cogens was defined and recognized by the Vienna Convention on the Law of Treaties and the Restatement of the Foreign Relations of the United States, as set forth below:
Vienna Convention on the Law of Treaties, 115 U.N.T.S. 331 (1980), 8 I.L.M. 679 (1979), entered into force January 27, 1980:
Article 53
Treaties conflicting with a peremptory norm
of general international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law 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.
Article 64
Emergence of a new peremptory norm
of general international law (jus cogens)
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
1 Restatement (Third) of the Foreign Relations Law of the United States § 102, reporter’s note 6 (1987):
. . . The Vienna Convention requires that the norm (and its peremptory character) must be “accepted and recognized by the international community of States as a whole” . . . which apparently means by “a very large majority” of states, even if over dissent by “a very small number” of states. . . .
Although the concept of jus cogens is accepted, its content is not agreed. There is general agreement that the principles of the UN Charter prohibiting the use of force are jus cogens. . . . It has been suggested that norms that create “international crimes” and obligate all states to proceed against violations are also peremptory. . . . This might include rules prohibiting genocide, slave-trading and slavery, apartheid and other gross violations of human rights, and perhaps attacks on diplomats.
In arguing that the prohibition of the juvenile death penalty has risen to the level of jus cogens, Professor de la Vega noted, “A prohibition rises to the level of jus cogens when the norm is 1) of general international law; 2) accepted by the States as a whole; 3) immune from derogation; and 4) modifiable only by a norm of the same status. . . . No country is allowed to deviate from a jus cogens norm because it is irrelevant if a nation is a persistent objector since jus cogens norms transcend the consent of governments.” Connie De la Vega & Jennifer Fiore, The Supreme Court of the United States Has Been Called upon to Determine the Legality of the Juvenile Death Penalty in Michael Domingues v. State of Nevada, 21 Whittier L. Rev. 215, 225–26 (1999) (footnotes omitted).
In Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), the Second Circuit recognized that official torture “is prohibited by universally accepted norms of international law.” Id. at 243. According to the Restatement (Third), supra, § 702:
A state violates international law if, as a matter of state policy, it practices, encourages, or condones
(a) genocide
(b) slavery or slave trade,
(c) the murder or causing the disappearance of individuals,
(d) torture or other cruel, inhuman, or degrading treatment or punishment,
(e) prolonged arbitrary detention,
(f) systematic racial discrimination.
The International Criminal Tribunal for the Former Yugoslavia has also held that the prohibition on torture has achieved jus cogens status:
. . . [G]iven the importance that the international community attaches to the protection of individuals from torture, the prohibition against torture is particularly stringent and sweeping. States are obliged not only to prohibit and punish torture, but also to forestall its occurrence . . . . [I]nternational rules prohibit not only torture but also (i) the failure to adopt the national measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.
. . .
. . . Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary” customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
Prosecutor v. Furundzija, Judgment, IT-95-17/1-T (ICTY Trial Chamb. 1998) paras. 148, 153 (footnotes omitted). The Tribunal addressed the relationship between jus cogens and what The Paquete Habana described as a “controlling executive or legislative act or judicial decision”:
The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state . . . level[]. . . . [I]t serves to internationally de-legitimize any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law.
Id. para. 155 (footnotes omitted).
f. Interpreting U.S. Law in light of International Principles and Practice
Constitutional and statutory principles are often written in broad language that requires some interpretation. For example, the U.S. Constitution protects “due process” and “equal protection” and forbids “cruel and unusual punishment.” In interpreting the sweeping language of such provisions, should courts make reference to international law? Different Supreme Court Justices have variously responded to that question in different cases over the decades.
The Eighth Amendment to the U.S. Constitution does not define “cruel and unusual punishment.” The Supreme Court has treated foreign and international law inconsistently in determining accepted standards of decency. In Weems v. United States, the Court determined that clause may acquire new meaning “as public opinion becomes enlightened by a humane justice.” 217 U.S. 349, 378 (1910). Further, the Court has determined that the clause “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). In the Trop case, where the Court ruled in a 5-4 decision that denaturalization of a military deserter constituted “cruel and unusual punishment,” eight justices agreed on the relevance of foreign state practices to their inquiry. Id. at 102, 126.
In Trop both the prevailing four-judge decision and the four-judge dissent consulted the same United Nations comparative survey of nationality laws of 84 countries. The deciding justice, Justice Brennan, filed a concurrence not referring to global practices. Nineteen years later, a four-member plurality decision, joined by three concurrences, invoked Trop in stating that international opinion was “not irrelevant” to the question of whether the death penalty was an acceptable punishment for rape. Coker v. Georgia, 433 U.S. 584, 596 (1977) (death penalty for rape held a violation of the Eighth Amendment). The 4-member plurality decision considered a U.N. Department of Economic and Social Affairs comparative study on death penalty practices in some 60 countries. In Enmund v. Florida, Justice White, writing for a 5-4 majority, considered “international opinion” in analyzing the constitutionality of imposing the death penalty for felony murder. 458 U.S. 782, 788–89 (1982) (death penalty may not be imposed for felony murder, citing in a footnote the experience of Commonwealth and Western European countries).
In Thompson v. Oklahoma a four-member plurality of justices inquired into societal acceptance of capital punishment for 15-year-old offenders by considering legislative judgments of state lawmakers and jury verdicts in 20th century capital prosecutions of juveniles. 487 U.S. 815 (1988). Justice Stevens, writing for Justices Brennan, Marshall, and Blackmun, concluded on the basis of this survey that executing a 15-year-old offender “would offend civilized standards of decency.” Justice Stevens then noted that this position
is consistent with the views that have been expressed . . . by other nations that share our Anglo-American heritage, and by the leading members of the Western European community. . . . Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand . . ., in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.
Id. at 830–31. In an accompanying footnote, Justice Stevens further noted that the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the Fourth Geneva Convention explicitly prohibit juvenile death penalties. Id. at 831 n.34.
Justice Scalia, in a footnote to a dissenting opinion joined by Chief Justice Rehnquist and Justice White, responded that international standards should never be imposed via the U.S. Constitution:
That 40% of our States do not rule out capital punishment for 15-year-old felons is determinative of the question before us here, even if that position contradicts the uniform view of the rest of the world. We must never forget that it is a Constitution for the United States of America that we are expounding. The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so implicit in the concept of ordered liberty that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution. In the present case, therefore, the fact that a majority of foreign nations would not impose capital punishment upon persons under 16 at the time of the crime is of no more relevance than the fact that a majority of them would not impose capital punishment at all, or have standards of due process quite different from our own.
Id. at 868–69 n.4 (internal quotations and citations omitted).
One year after Thompson, the Supreme Court revisited the issue of juvenile capital punishment and held that the death penalty for a crime committed at 16 or 17 years of age does not constitute cruel and unusual punishment. Stanford v. Kentucky, 492 U.S. 361, 380 (1989). Justice Scalia, now writing for a five-member majority including Chief Justice Rehnquist as well as Justices White, O’Connor, and Kennedy, again rejected in a footnote the relevance of international law and practice in construing the Eighth Amendment by quoting his dissenting footnote in Thompson:
We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention of petitioners and their various amici that the sentencing practices of other countries are relevant. While the practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely an historical accident, but rather so implicit in the concept of ordered liberty that it occupies a place not merely in our mores, but, text permitting, in our Constitution as well, they cannot serve to establish the first Eighth Amendment prerequisite, that the practice is accepted among our people.
Id. at 370 (emphasis in original, internal quotations and citations omitted).
In a dissenting opinion Justice Brennan—joined by Justices Marshall, Blackmun, and Stevens—indicated that the execution of 16- and 17-year-old offenders would violate the Eighth Amendment and referred to international experience and ratification of human rights treaties:
Our cases recognize that objective indicators of contemporary standards of decency in the form of legislation in other countries is also of relevance to Eighth Amendment analysis. Many countries of course—over 50, including nearly all in Western Europe—have formally abolished the death penalty, or have limited its use to exceptional crimes such as treason. Twenty-seven others do not in practice impose the penalty. Of the nations that retain capital punishment, a majority—65—prohibit the execution of juveniles. Sixty-one countries retain capital punishment and have no statutory provision exempting juveniles, though some of these nations are ratifiers of international treaties that do prohibit the execution of juveniles. Since 1979, Amnesty International has recorded only eight executions of offenders under 18 throughout the world, three of these in the United States. The other five executions were carried out in Pakistan, Bangladesh, Rwanda, and Barbados. In addition to national laws, three leading human rights treaties ratified or signed by the United States explicitly prohibit juvenile death penalties. Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved.
Id. at 389 (citations omitted).
In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court prohibited execution of offenders who were juveniles at the time the offense was committed, holding that such executions are prohibited under the 8th and 14th Amendments. As discussed above, the Court considered the argument that because the Senate in 1992 endorsed a Presidential reservation to the provision of the Civil and Political Covenant which prohibited the juvenile death penalty, there is no national consensus against capital punishment for juveniles. This reservation, the Court found, “at best provides only faint support” for the argument that there is no consensus against the juvenile death penalty. Id. at 567. The Court also observed that its conclusion that execution of persons who were under 18 at the time of the offense constitutes disproportionate punishment “finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Id. at 575. In reaching its decision, the Court “acknowledge[d] the overwhelming weight of international opinion against the juvenile death penalty.” Id. at 577.
Justice Scalia, dissenting from the majority opinion in Roper, argued that the reservation to the Civil and Political Covenant demonstrated that “our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces.” Id. at 622 (Scalia, J., dissenting). He called for rejection of the premise “that American law should conform to the laws of the rest of the world . . . .” Id. at 624. Justice O’Connor, in a separate dissent, concluded that there is no national consensus opposing the juvenile death penalty, but also noted that
this Nation’s evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement—expressed in international law or in the domestic laws of individual countries—that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus.
Id. at 605 (O’Connor, J., dissenting). Scalia criticized O’Connor’s analysis, arguing that an international consensus must not be used to confirm the reasonableness of a domestic consensus unless it may also be used to “demonstrate the unreasonableness of such a consensus. Either America’s principles are its own, or they follow the world; one cannot have it both ways.” Id. at 627 (Scalia, J., dissenting). Clearly, the relevance of international human rights agreements and norms in regulating the actions of U.S. governmental bodies remains unsettled.
Some politicians have gone so far as to call for the impeachment of judges who rely on international law in their reasoning,[30] and in 2005, a resolution was proposed in the House of Representatives stating that “interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions.”[31] According to this resolution, “inappropriate judicial reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States, the separation of powers and the President's and the Senate’s treaty-making authority.”[32] Despite the concerns expressed by certain politicians, judges often rely on international law in making their decisions.
In her keynote address at the 2005 annual meeting of the American Society of International Law (ASIL), Justice Ginsburg urged courts to use international principles in interpreting U.S. law.
Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication (Apr. 1, 2005).
. . . National, multinational and international human rights charters and courts today play a prominent part in our world. The U. S. judicial system will be the poorer, I believe, if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.
Very much the same opinion was several times expressed by the Chief Justice of the United States, William H. Rehnquist, most recently in a 1999 Foreword to a collection of essays on comparative constitutional law. The Chief wrote:
[F]or nearly a century and a half, courts in the United States exercising the power of judicial review [for constitutionality] had no precedents to turn to except their own, because our courts alone exercised this sort of authority. When many new constitutional courts were created after the Second World War, these courts naturally looked to decisions of the Supreme Court of the United States, among other sources, for developing their own law. But now that constitutional law is solidly grounded in so many countries, it [is] time the U. S. courts began looking to the decisions of other constitutional courts to aid in their own deliberative process.
. . . [W]hile U. S. jurisprudence has evolved over the course of two centuries of constitutional adjudication, we are not so wise that we have nothing to learn from other democratic legal systems newer to judicial review for constitutionality. The point was well made by Second Circuit Judge, former Dean of Yale Law School, Guido Calabresi: “Wise parents,” Judge Calabresi said in a 1995 concurring opinion, “do not hesitate to learn from their children.”
There are generations-old and still persistent discordant views, I acknowledge, on recourse to the “Opinions of Mankind.” A mid-19th century U. S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote:
No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U. S. Supreme Court] to give the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.
Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no “descendan[t] of Africans [imported into the United States], and sold as slaves” could ever become a citizen of the United States.
While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments reversed that judgment, there remains among U. S. jurists considerable skepticism on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed downright opposition. Justice Scalia wrote this year, in a dissenting opinion joined by the Chief Justice and Justice Thomas: The Court “should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”
Somewhat more accommodating, Ninth Circuit Judge Diarmuid O'Scannlain stated in remarks made last fall at the Institute of Advanced Legal Studies in London: “[Judges] both in the United States and in other countries [should] be cautious about engaging in comparative constitutional analysis” for “our respective countries and legal systems remain distinct in several important respects.” “[L]imited references to foreign legal authorities may play a beneficial role in contemporary American jurisprudence,” he said, but “courts in the United States should restrict the use of foreign legal authorities to certain well-defined categories of cases”: when treaties or international conventions are relevant, first and foremost, and also when our Congress “has expressed a desire to bring the United States into alignment with the international community.”
More representative of the perspective shared by six of my current colleagues, Patricia M. Wald, former Chief Judge of the D.C. Circuit, last year said with characteristic wisdom: “It’s hard for me to see that the use of foreign decisional law is an up-or-down proposition. I see it rather as a pool of potential and useful information and thought that must be mined with caution and restraint.”
A better example of interpreting U.S. laws in light of international principles and practice is Justice Kennedy's opinion for the Court in Lawrence v. Texas, announced June 26, 2003. Overruling the Court's 1986 decision in Bowers v. Hardwick, Lawrence declared unconstitutional a Texas statute prohibiting two adult persons of the same sex from engaging, voluntarily, in intimate sexual conduct. On the question of dynamic versus static, frozen-in-time constitutional interpretation, the Court's opinion instructs:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
On respect for “the Opinions of [Human]kind,” the Lawrence Court emphasized: “The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.” In support, the Court cited the leading 1981 European Court of Human Rights decision, Dudgeon v. United Kingdom, and subsequent European Human Rights Court decisions affirming the protected right of homosexual adults to engage in intimate, consensual conduct.
2. Questions
In developing a strategy to help Rashul, Qassem, and Zammar, be sure to keep in mind the various approaches to the application of international law in U.S. courts, and consider the following questions:
1. Without reference to international law are there provisions of the U.S. Constitution or federal statutes that would provide relief to Rashul, Qassem, and Zammar?
2. What provisions of U.S. law would be helpful to them by incorporating international law?
3. What provisions of U.S. law would be helpful to them if interpreted by reference to international law?
4. In order to understand the application of international law, what circumstances unique to Rashul, Qassem, and Zammar may be relevant in determining the extent to which treaties may protect them? Should Rashul, Qassem, and Zammar be considered civilians, prisoners of war, or something else? Does their nationality matter?
5. What treaties to which the United States is a party contain provisions that may prohibit the removal of persons from occupied territory?
6. Which articles of those treaties are most relevant to the removal of Rashul, Qassem, and Zammar?
7. Which individuals are protected under those treaties? What language in those treaties describes the qualifications for being a protected person?
8. Can the Geneva Conventions continue to be used in U.S. courts consistent with the Military Commissions Act of 2006? If so, how?
9. Why is it relevant to know that Rashul, Qassem, and Zammar were removed from occupied Iraq?
10. Why do the Geneva Conventions provide heightened protections for nationals of neutral states during occupation, but not during wartime?
11. Have conditions in Iraq changed since the Coalition Provisional Authority handed over sovereignty to Iraqi authorities on June 28, 2004, so as to alter the applicability of any relevant treaties?
12. What is the nature and extent of the protections afforded by those treaty provisions?
13. What is the relevance of the self-executing treaty doctrine with respect to applying provisions of those treaties to the United States?
14. What federal laws have been enacted to give effect to those treaty provisions?
15. What effect does federal legislation have on those treaty provisions? Absent such legislation, would the provisions have any effect?
16. Do the statutes that declare torture and war crimes to be criminal acts provide any opportunity for redress for Rashul, Qassem, and Zammar? What if the U.S. Attorney General declines to prosecute violators of those criminal statutes?
17. To what extent does the doctrine of mala captus bene detentus apply to extraordinary rendition? In what ways can the cases of Rashul, Qassem, and Zammar be distinguished from the abduction of Dr. Alvarez-Machain? What policy arguments justify such distinctions?
18. What are the implications for U.S. compliance with international law of the passage from U.S. v. Alvarez-Machain quoted infra at 28? Are there other principles of constitutional, federal, and international law that would suggest a better approach?
19. What mechanisms are available under U.S. law to compel the return of Rashul, Qassem, and Zammar to Iraq?
20. What procedural obstacles must be overcome to pursue those mechanisms?
21. What is the purpose of the writ of habeas corpus?
22. In Frisbie v. Collins, 342 U.S. 519 (1952), the defendant filed a habeas corpus petition arguing that his abduction was a criminal act in violation of the Federal Kidnapping Act. The Court rejected this argument, contending that it would be improper to fashion a type of “exclusionary rule” to prohibit jurisdiction where a court obtained the presence of a defendant by illegal means. To what extent is the Court’s reasoning applicable to the use of habeas corpus for Rashul, Qassem, and Zammar?
23. Based on the available information, were Rashul, Qassem, or Zammar in violation of any Iraqi immigration laws at the time of their detention? If so, what are the appropriate consequences under Iraqi law? Under the relevant treaties?
24. In June 2003, the U.S.-led Coalition Provisional Authority (CPA) made several changes to Iraqi immigration law. The June 2003 CPA order imposed a permit system on non-Iraqis who are not Coalition personnel or United Nations officials. The order allowed for a permit to be denied if an officer had reasonable grounds to believe that the permit applicant “will commit offenses, or engage in criminal activity,” or:
will engage in or has engaged in an act of terrorism, or is a member of a terrorist organization or an organization that there are reasonable grounds to believe will: i) engage in acts which are offensive to the principles of democratic government, institutes or processes, in Iraq; or ii) engage in or instigate the removal by force of any government.[33]
Under the terms of the CPA order, deportation is one possible penalty for remaining in Iraq without a valid permit.[34] What are the implications of this order for Qassem and Zammar? Presume that both Qassem and Zammar apply for, and are denied, permits under this order. What arguments could they raise to challenge the validity of this order if they are being removed from Iraq on the grounds that they lack a valid permit?
25. To what extent would answers to any of the above questions change if Qassem or Zammar were charged with criminal offenses in their respective home countries prior to their removal from Iraq?
26. In light of the Supreme Court’s decision in Sosa, is it necessary or desirable for Rashul, Qassem, and Zammar to draw on customary international law (as argued in The Paquete Habana, for example)? Is there a “controlling executive act” relating to extraordinary rendition that would limit or prohibit consideration of customary norms of international law?
27. Contrast the possible application of international human rights law in U.S. courts on behalf of Rashul, Qassem, and Zammar with the advice provided by Judge Linde and the basis for the Supreme Court’s decision in Roper. In what ways do Linde and Roper suggest that Rashul, Qassem, and Zammar will face heightened burdens in challenging their detentions?
B. FRAMEWORK FOR ANALYZING THE APPLICABILITY OF INTERNATIONAL PRINCIPLES AND PRACTICE
Among the various provisions of U.S. domestic law, the Geneva Conventions, human rights law, and customary international law are several stipulations relevant to the practice of extraordinary rendition. One way of perceiving extraordinary rendition as it relates to domestic law is to look at the line of cases dealing with “mala captus bene detentus,” defined as the process “whereby national courts will assert in personam jurisdiction without inquiring into the means by which the presence of the defendant was secured.”[35] The Supreme Court has long held that the use of means that are illicit, illegal, or in circumvention of an existing extradition treaty to bring a person into a court’s jurisdiction poses no inherent impediment to assertion of in personam jurisdiction in criminal cases. In Ker v. Illinois, 119 U.S. 436 (1886), the Court held that the requirements of due process were satisfied by Illinois’ exercise of personal jurisdiction over Ker, who was kidnapped in Peru and brought back to the U.S. to stand trial.
The Supreme Court’s first modern encounter with government-sanctioned transnational kidnapping as an alternative to extradition was the case of United States v. Alvarez-Machain, 504 U.S. 655 (1992). In this case, Alvarez-Machain was forcibly removed from Mexico in order to stand trial in the United States for his alleged assistance in the torture of a DEA agent. Although the U.S. had formally requested that Alvarez-Machain be extradited, the Mexican Government evidently intended to prosecute the defendant itself, and therefore did not wish to extradite him. Instead of using the extradition treaty, the U.S. Government arranged for the abduction of Alvarez-Machain from Mexico so that he could be brought to the U.S. to stand trial. In holding that Alvarez-Machain’s forcible removal from Mexico would not prevent a U.S. court from exercising jurisdiction over him, the Supreme Court was dismissive of the relevance of the principles of international law:
Respondent …may be correct that respondent’s abduction was ‘shocking,’ and that it may be in violation of general international law principles. Mexico has protested the abduction of respondent through diplomatic notes . . . . We conclude, however, that respondent’s abduction was not in violation of the Extradition Treaty between the United States and Mexico, and therefore . . . [t]he fact of respondent’s forcible abduction does not…prohibit his trial in a court in the United States for violations of the criminal laws of the United States.[36]
Where domestic law does not adequately provide a remedy for victims of extraordinary rendition, various principles of international law do, including the prohibition in the Third Geneva Convention[37] of torture and inhuman treatment of prisoners of war; the prohibition of forcible transfer of civilians during occupation of the Fourth Geneva Convention;[38] and the prohibition of cruel treatment and torture under Common Article 3 of the Geneva Conventions. The reader should consider the following approach[39] in determining whether and what international humanitarian law may be applicable in U.S. courts with respect to the practice of extraordinary rendition:
Is there an international armed conflict between two or more High Contracting Parties to the Geneva Conventions?
Is there a partial or total occupation of territory governed by the Geneva Conventions?
If either of the above conditions is met, who is afforded protected person status under the conventions?
What rights and protections are afforded to those protected persons?
If neither of the conditions of the first two questions is met, does Common Article 3 apply to the conflict, and what protections does it provide?
Does international humanitarian or human rights law provide protections for victims of extraordinary rendition?
If there is no relevant treaty, does customary international law provide a remedy?
The following discussion will frequently refer to the Commentary of the International Committee of the Red Cross (ICRC).[40] The ICRC was the driving force behind the drafting of the 1949 Geneva Conventions. Jean S. Pictet, the former Director-General of the ICRC, was responsible for much of the preparatory work for the Conventions. He subsequently authored a multi-volume Commentary on the Geneva Conventions, which is considered by most to constitute the authoritative legislative history and interpretation of those agreements.
1. Is There an International Armed Conflict Between High Contracting Parties?
Article 2 is an article common to all four of the Geneva Conventions and identifies situations in which the conventions apply:
The present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Note that this article presents two distinct questions: (1) does the conflict involve two or more High Contracting Parties; and (2) at what point does an armed conflict or occupation ends, thus terminating various protections under the Geneva Conventions?
The question of whether a conflict involves two or more High Contracting Parties is relevant in determining whether the Geneva Conventions are applicable to the conflict against the Taliban in Afghanistan. The Bush Administration has argued that since al Qaeda is not a state actor and not a party to the Geneva Conventions, the conflict between the United States and al Qaeda is therefore not governed by the Geneva Conventions.[41] Further, the administration argued that the Taliban was not widely recognized as the de facto government of Afghanistan.[42] Instead, they argued that Afghanistan was a “failed state” and the Taliban could not properly invoke the protections of the Geneva Conventions.[43] This argument would establish an ominous precedent and undermine the entire foundation of humanitarian law, for many states initiate wars on the grounds that the government of the state they are attacking is illegitimate.[44]
Although the Bush administration has maintained that the Geneva Conventions are “fully applicable” to the conflict in Iraq,[45] it is unclear exactly when armed conflict there ended. Beginning with the U.S. invasion of Iraq in March 2003, the United States and Iraq, both High Contracting Parties to the Geneva Conventions, were engaged in armed conflict. Gradually the United States and coalition forces began to occupy regions of the country as the armed conflict continued. While it is unclear whether occupation has ended, one may argue that the Geneva Conventions continue to apply to Iraq because they apply to conditions of armed conflict, and their applicability only ceases “on the general close of military operations.”[46] Arguably, Iraq has yet to observe a “general close of military operations.”[47] Hence, the Geneva Conventions may be in effect regardless of the United States’ presence as an occupying power, because there has yet to be a general close of military operations in Iraq.
Is There a Partial or Total Occupation of Territory Governed by the Geneva Conventions?
The hostile occupation of one country by another is governed by the Fourth Geneva Convention. The term “occupation” as it applies to the Civilian Convention is intentionally broad. A territory is occupied if forces control it.[48] Article 49, which governs only during a military occupation and prohibits individual or mass forcible transfers or deportations, even applies to patrols penetrating into enemy territory without any intention of staying.[49] Because both Afghanistan and Iraq are High Contracting Parties, the United States would be governed by the Civilian Convention because of its obligations as an occupying power.
With respect to the occupation of Afghanistan or Iraq, the Bush administration may argue the United States is no longer an occupying power, and accordingly the conventions have ceased to apply. This argument hinges on the language of Article 6 of the Civilian Convention, which provides that, “In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations . . . .”[50] Hence, by the very language of the Convention, it is irrelevant whether the occupation has ceased; the critical measure is the close of military operations. An occupying power, however, “shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory.” Occupying powers which still exercise control over some functions of the government are bound by many provisions of the Fourth Geneva Convention, including, inter alia, Articles 4, 47, and 49, discussed infra at 31-32. While it is unclear whether or to what extent occupation has in fact ended, as long as the United States exercises functions of government in Afghanistan or Iraq, the United States is bound by the above-listed articles.
2. Who is Afforded Protected Person Status?
a. Prisoners of War
In the case of a conflict of an international character involving two or more High Contracting Parties, the Third Geneva Convention protects prisoners of war detained as a consequence of international armed conflict. Article 4 protects “[m]embers of the armed forces of a Party to the conflict,” “members of militias or volunteer corps forming part of [the] armed forces,” as well as “members of other militias . . . including those of organized resistance movements.” In order to be eligible for protection, persons belonging to the militia must comply with four additional requirements, including carrying arms openly and “having a fixed distinctive sign recognizable at a distance.” Moreover, the underlying rationale for the four requirements in Article 4(A)(2) is to enable participants in an armed conflict to know whom they may target for armed violence.
Article 130 of the Geneva POW Convention defines grave breaches to include “wilful killing, torture or inhuman treatment, . . . [and] wilfully causing great suffering or serious injury to body or health.” Under Article 131, States shall not “be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches” of the Third Geneva Convention. Article 12 allows High Contracting Parties to transfer POWs into the custody of other nations, but only “to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.” If, however, the receiving party “fails to carry out the provisions of the Convention in any important respect,” the transferring party must “take effective measures to correct the situation.” Further, Common Article 1 of the Geneva Conventions states that “[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
b. Civilians
Nearly every person who is not protected as a POW automatically acquires protected person status under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force Oct. 21, 1950 [hereinafter Geneva Civilian Convention or Fourth Geneva Convention]. Article 4 of the Geneva Civilian Convention extends protection to “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,” but denies protected person status to persons who are in the hands of their own government, and during armed conflict, to nationals of co-belligerent and neutral states. Article 5 of the Fourth Geneva Convention even extends protection to those persons detained as spies or saboteurs, although they may be denied the right to communicate in cases where “absolute military security so requires.”
Under Article 47 of the Geneva Civilian Convention, “[p]rotected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention” by any changes to the laws or institutions of the occupied country introduced by the Occupying Power. Article 49 of the Fourth Geneva Convention prohibits the transfer or deportation of protected persons out of occupied territory, regardless of the occupier’s motive, except when an Occupying Power evacuates an area for security of military reasons. Article 64 of the Fourth Geneva Convention states that “[t]he penal laws of the occupied territory shall remain in force . . . .” These laws, however, may be repealed or suspended by the Occupying Power when the laws constitute a threat to the Occupying Power’s security, or where they stand as an obstacle to the application of the Convention. Article 147 defines the same grave breaches as the Geneva POW convention, but also includes “unlawful deportation or transfer or unlawful confinement of a protected person.” Under Article 148, High Contracting Parties may not absolve themselves of liability for grave breaches.
For further discussion of protections available to civilians, see part E.1.a, infra at 47.
c. Unlawful Combatant
The principal basis for the Bush administration’s attempt to deny the applicability of the Geneva Conventions is the claim that certain individuals in U.S. custody are outside of the scope of the Geneva Conventions. The administration has argued that al Qaeda members do not comply with the four requirements listed in Article 4(A)(2) of the POW Convention, and hence they are not entitled to POW status,[51] and should be classified as unlawful combatants. Further, the administration argued that the POW Convention “assumes the existence of ‘regular’ armed forces fighting on behalf of states.”[52]
The Third Geneva Convention, however, makes no mention of the term “unlawful combatants,” “unlawful belligerents,” or “enemy combatants,” and by its terms does not envision a category of fighters in an international armed conflict that would be excluded from all Geneva protections on any basis other than nationality. Additionally, the Convention only uses the term “regular armed forces” to describe a third category of POWs in Article 4(A)(3).[53] Article 4(A)(2) actually presumes the existence of “organized resistance movements, belonging to a Party to the conflict.”
What Rights and Protections are Afforded to Those Protected Persons?
a. Protection Against Torture and Inhuman Treatment
Because the Fourth Geneva Convention contains all of the grave breaches listed in the Third Geneva Convention, any person covered by the Civilian Convention is protected from rendition just as a POW is, with regard to the prohibitions on subjecting a protected person to “wilful killing, torture or inhuman treatment . . . .”[54] This article is of particular relevance to the U.S. practice of extraordinary rendition, for not only must the United States itself respect the prohibition against torture and inhuman treatment, it must also ensure respect for the prohibition in all circumstances. These rights and protections are afforded to POWs and to protected civilians, regardless of whether those civilians are detained during armed conflict or during occupation.
Special Protections Prohibiting the Transfer of Civilians
With regard to occupation, Article 149 of the Fourth Geneva Convention also includes as a grave breach “unlawful deportation or transfer . . . of a protected person . . . .” Article 49 governs deportations, transfers, and evacuations:
[(1)] Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
[(2)]Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. . . .
[(6)]The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.[55]
According to the Jean Pictet’s influential commentary on the Geneva Conventions, “unlawful deportation or transfer” includes breaches of Article 49.[56] Because Article 49 may be implicated in cases of extraordinary rendition, it is of particular relevance to the present analysis. Article 49 is one of the articles listed as still binding on an occupying power more than one year after the end military operations, to the extent that the occupying power still exercises the functions of government.
Are Persons Protected, and What Protections are Afforded Under Common Article 3?
Common Article 3 articulates minimum protections for “the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” to any of the Geneva Conventions. It provides “rules of humanity which are recognized as essential by civilized nations” and applies “without any condition in regard to reciprocity.” Article 3 protects “[p]ersons taking no active part in the hostilities” from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” Further, Article 3 provides that those persons “shall in all circumstances be treated humanely.” Additionally, it “prohibit[s] at any time and in any place whatsoever . . . cruel treatment or torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Pictet observes that “no excuse, no attenuating circumstances” can justify these acts.[57] Pictet’s comment suggests that authorities may not use extraordinary rendition to excuse or avoid responsibility for torture or for cruel, humiliating, or degrading treatment. Therefore, under conditions of armed conflict not otherwise governed by the Geneva Conventions, extraordinary rendition violates Common Article 3 if it constitutes an effort to cause or justify torture or cruel, humiliating, or degrading treatment.
As discussed supra at 14, courts are often called upon to interpret the language of treaties. Common Article 3 applies to “armed conflict[s] not of an international character.” The Supreme Court interpreted this provision in Hamdan v. Rumsfeld, discussed supra at 7. The Court of Appeals had held that Common Article 3 did not apply to Hamdan, an alleged al Qaeda operative, because the conflict with al Qaeda was “international in scope” and hence not a conflict “not of an international character.”[58] The Supreme Court found this reasoning “erroneous,” noting that “the term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations.”[59] The Court noted that Common Article 3 is the logical counterpart to Common Article 2, which provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.”[60] Common Article 3:
affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory ‘Power’ who are involved in a conflict ‘in the territory of’ a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not).[61]
Based on this analysis, the Court held that the protections of Common Article 3 extended to Hamdan.[62]
3. Does International Humanitarian or Human Rights Law Provide Protections for Victims of Extraordinary Rendition?
In times of war, victims of human rights abuses may seek a remedy based on international humanitarian law, which is designed to limit suffering caused by a conflict, and to protect those who fall into the hands of an adverse party. Humanitarian law applies to armed conflicts between nations as well as to internal conflicts such as civil wars. Although the four Geneva Conventions, discussed supra, are the principal legal documents which comprise the field of humanitarian law, additional international agreements regarding the law of armed conflict, like the Protocols Additional to the Geneva Conventions, expand on those rights found in the Conventions.
The Bush administration argues that Geneva Conventions operates as lex specialis to the exclusion of other precepts of international law. Under the administration’s argument, the “war on terror” can only be viewed within the context of international humanitarian law and not human rights law. But since “unlawful combatants” are not protected under the Geneva Conventions, they argue, victims of extraordinary renditions are afforded no protection based on humanitarian law. To the contrary, as discussed above at least Common Article 3 applies to victims of extraordinary rendition in the context of the “war on terror.” Further, international human rights law protects individuals in all circumstances, even those not governed by humanitarian law. Whereas humanitarian law applies only to circumstances involving armed conflict, international human rights law protects individuals from human rights abuses in the absence of any such conflict. Hence, even if there is no conflict or occupation, individuals are still protected by human rights law. The following treaties are especially relevant to victims of extraordinary rendition.
a. International Covenant on Civil and Political Rights[63]
Article 2(1) of the Civil and Political Covenant suggests that a State party is only obligated to respect and ensure the rights of the Covenant “to all individuals within its territory and subject to its jurisdiction.”[64] The Human Rights Committee has determined that a person need not be located within the territory of a State party in order for that State party to have obligations toward that person; the person must merely be “within the power or effective control” of the State party.[65] Therefore, once a State party takes a person into custody through extraordinary rendition, that detaining State party is required to afford the detainee the rights and protections enumerated in the Civil and Political Covenant.
Accordingly, several provisions of the Civil and Political Covenant bind states engaging in the practice of extraordinary rendition. Article 7 prohibits torture and other forms of cruel, inhuman and degrading treatment or punishment. Article 10 requires States parties to treat all detained persons “with humanity and with respect for the inherent dignity of the human person.” Subjecting individuals to torture and other forms of cruel, inhuman, and degrading treatment after transfer violates the provisions of Articles 7 and 10, and the process of abduction and transfer itself may violate a detainee’s inherent human dignity. Further, Article 13 of the Civil and Political Covenant prevents the expulsion of a non-citizen lawfully present in the territory of a State party unless the expulsion is “in pursuance of a decision reached in accordance with law.” Prior to expulsion, the non-citizen has the right to have a competent authority review the case, “except where compelling reasons of national security otherwise require.” Heightened procedural safeguards are appropriate when there is a risk of torture.
In September 2006, the United Nation’s Working Group on Arbitrary Detention ruled that the detention by the United States of 26 persons in the context of the so-called war on terror violatived Article 9 of the Civil and Political Covenant.[66] Article 9 provides that “[n]o one shall be subject to arbitrary arrest or detention,” and that upon arrest, an individual has a right to be made aware of the charges, and shall be brought promptly before a judge. The Working Group found that the detention in question:
falls outside of all national and international legal regimes pertaining to the safeguards against arbitrary detention. In addition the secrecy surrounding the detention and the interstate transfer of suspected terrorists may expose the persons affected to torture, forced disappearance, extra-judicial killing and in case they are prosecuted against, to the lack of the guarantees of a fair trial.[67]
The Working Group found that the deprivation of liberty that attends these detentions “manifestly cannot be justified on any legal basis.”[68]
b. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[69]
Article 1 of the Convention against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . .” In order to implicate the provisions of the Convention against Torture, this pain or suffering must be “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.” Article 16 requires every State party to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture . . . .”
Article 3 prohibits the expulsion, return (“refouler”), or extradition of “a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.” This prohibition is absolute, as Article 2 of the Convention against Torture allows for no justification of torture, “whether a state or war or a threat of war, internal political instability or any other public emergency.” Article 4 requires each State party to ensure that all acts of torture, as well as attempts to commit, or be compliant in, torture are criminalized. Further, Article 5 requires states to take necessary measures to establish jurisdiction over acts of torture committed in any territory under the state’s jurisdiction, when the offender is a national of that state, and when the victim is a national of that state.
c. Declaration and Convention on the Protection of All Persons from Enforced Disappearances[70]
Under Article 1 of the Declaration on the Protection of All Persons from Enforced Disappearances, “any act of enforced disappearance is an offence to human dignity.” Such a disappearance is a grave violation of the Universal Declaration of Human Rights and undermines the purposes of the Charter of the United Nations. Because an act of enforced disappearance places a person outside the protection of the law, such a disappearance constitutes a violation of international law and a grave threat to the right to life. Article 8 prohibits expulsion, return, or extradition to any State where there are “substantial grounds to believe” that an individual would be in danger of enforced disappearance. Further, under Article 5, a “State or State authorities which organize, acquiesce in or tolerate such disappearances” are liable under civil law, and Article 19 provides that victims of acts of enforced disappearance and their families “shall obtain redress and have the right to adequate compensation, including the means of as complete a rehabilitation as possible.” Article 7 allows for no justification of enforced disappearances under any circumstance whatsoever.
On June 29, 2006, the U.N. Human Rights Council adopted the International Convention for the Protection of All Persons from Enforced Disappearance[71] by consensus and recommended to the General Assembly that the Convention be opened for signature.[72]
Article 2 of the draft defines enforced disappearance as:
the arrest, detention, abduction, or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Article 1 of the convention would explicitly prohibit all forms of enforced disappearance, and Article 5 would recognize that widespread or systematic use of enforced disappearance is a crime against humanity.
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QUESTIONS
1. Under what circumstances is extraordinary rendition a form of enforced disappearance?
2. What remedies might be available under the terms of the Declaration or Convention?
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4. Is a Remedy for Human Rights Abuses Provided by Customary International Law?
In the absence of a treaty, or if a treaty exists with a reservation, victims of human rights abuses may still be protected by customary international law. One of the major difficulties in seeking a remedy based on customary international law comes in trying to determine and prove exactly what practices are customary. The International Committee of the Red Cross has published an authoritative treatise[73] on customary international humanitarian law. In this treatise, customary international law requires two elements: (1) state practice, and (2) a belief “that such a practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law.[74] The ICRC assembled information about official state practices, including formal statements by states, to demonstrate which practices are widely accepted as a matter of legal obligation.
Certain fundamental guarantees based on customary international law are extended to all civilians who do not take direct part in the hostilities. Among these guarantees is the right of civilians to be treated humanely; to be free from torture, cruel or inhuman treatment, and enforced disappearance.[75] Further, no one may be convicted or sentenced without a “fair trial affording all essential judicial guarantees.”[76] An additional element of customary international law that may be relevant to victims of extraordinary rendition is the requirement that family life be respected. The ICRC interprets this rule as requiring “contact between family members and the provision of information on the whereabouts of family members.”[77] Even “[p]ersons deprived of their liberty” must be allowed to correspond with their families under customary international law.[78]
The Rome Statute of the International Criminal Court[79] sets forth many of the practices which are prohibited by customary international law. Article 7 of the Rome Statute defines “crimes against humanity” as including acts of murder, deportation or forcible transfer, torture, enforced disappearance and imprisonment “in violation of the fundamental rules of international law.” Article 8 defines war crimes as any “[g]rave breaches of the Geneva Conventions . . . namely” torture and inhuman treatment, unlawful deportation, transfer or confinement, and serious violations of Common Article 3.
Does the U.S. practice of extraordinary rendition constitute war crimes or crimes against humanity? If so, see the following sections for possibly remedies.
C. FEDERAL STATUTES CONCERNING EXTRAORDINARY RENDITION
The previous section of this chapter focused on the basic international standards that relate to the U.S. practice of extraordinary rendition. The following sections focus on how those international standards have been incorporated into national law via implementing legislation and other statutes, the Bush administrations justifications for the practice of extraordinary rendition, and possible remedies available in U.S. courts to victims of renditions.
1. Implementing Legislation
Congress criminalized grave breaches of international agreements such as the Geneva Conventions when it passed the War Crimes Act of 1996, 18 U.S.C. § 2441, Pub. L. No. 104-192, codified as amended by Pub. L. No. 105-118 (1997). Under 18 U.S.C. § 2441, persons guilty of war crimes, whether committed inside or outside the United States, are subject to fine, imprisonment, or death. The War Crimes Act defines a war crime as, among other things, a “grave breach in any of the [Geneva Conventions of 1949], or any protocol to such convention which the United States is a party.”
Individuals who commit, attempt to commit, or conspire to commit torture are subject to fine, imprisonment, or death under 18 U.S.C. § 2340A. This statute gives a court jurisdiction over allegations of torture when the alleged offender is a national of the United States, or is present in the United States, regardless of the nationality of the victim or the alleged offender. Torture is defined by 18 U.S.C. § 2340 as an act committed “under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control.” “Severe mental pain or suffering” included the mental harm caused or resulting from: (a) the intentional or threatened infliction of severe physical pain or suffering;(b) the actual or threatened administration or application of mind altering substances; (c) the threat of imminent death; and (d) the threat that another person will be subjected to death or any of the previously mentioned acts.
2. The Habeas Corpus Statute
Perhaps the most likely remedy available to victims of extraordinary rendition is the writ of habeas corpus. This writ is the appropriate means for persons in U.S. custody to challenge the legality of that custody. Under 28 U.S.C. § 2241(a), “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” In the case of extraordinary rendition, however, the detainee must consider several jurisdictional issues to determine whether habeas is a possibility. Pursuant to § 2241(c), a prisoner is not entitled to habeas relief unless he or she is in custody: (1) “under or by color of authority of the United States . . . ;” (2) “for an act done or omitted in pursuance of an Act of Congress . . . ;” or (3) “in violation of the Constitution or law or treaties of the United States . . . .”
The Supreme Court first interpreted the legislative intent underlying 28 U.S.C. § 2241(c)(3) in 1867:
What was the purpose of [the legislation enacting 28 U.S.C. § 2241(c)(3)]? . . . It was to relieve persons from a deprivation of their liberty under State laws; to protect loyal men in the rebel states from oppression under color of State laws . . . ; to protect especially those who had formerly been slaves . . .. This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws.
Ex parte McCardle, 6 Wall. 318, 322, 324–25 (1867).
In Rasul v. Bush, 542 U.S. 466 (2004), the Supreme Court considered whether the habeas statute contains a territorial restraint. The petitioners for habeas corpus were being detained at the U.S. military facility at Guant(namo Bay, and both the District Court for the District of Columbia and the D.C. Circuit Court had dismissed the claims on jurisdictional grounds. The argument rejecting jurisdiction under the habeas statute is based on the phrases “within their respective jurisdictions” and “the district court of the district wherein the restraint complained of is had” in § 2241(a), and a provision of 28 U.S.C. § 2242 which requires that petitions submitted to the Supreme Court must state reasons for not submitting the petition to “the district court of the district in which the applicant is held.”
The Supreme Court definitively rejected this argument, holding: “No party questions the District Court’s jurisdiction over petitioners’ custodians. Section 2241, by its terms, requires nothing more.”[80] Rasul has since been interpreted to require that detainees held at Guantánamo bring their habeas petitions to the District Court of the District of Columbia.[81] Presumably, the same restriction would apply to others held outside of the United States.[82] Additionally, while people detained within the jurisdiction of a U.S. district court are generally required to bring their habeas petition in the district where their immediate custodian is located,[83] there is an exception to this “immediate custodian rule” for people detained outside the territorial jurisdiction of any district court.[84] Hence, the habeas statute affords the District Court of the District of Columbia jurisdiction to hear habeas petitions of persons detained outside of the United States, provided that court has jurisdiction over a supervisory official.
The right to habeas corpus is both constitutional and statutory. The Constitution provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.”[85] In 2004 the Supreme Court explained the relationship between statutory and constitutional habeas corpus in Rasul v. Bush:
[T]his Court, like the Court of Appeals, proceeded from the premise that “nothing in our statutes” conferred federal-court jurisdiction, and accordingly evaluated the Court of Appeals’ resort to “fundamentals” on its own terms. Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager’s resort to “fundamentals,” persons detained outside the territorial jurisdiction of any federal district court no longer need to rely on the Constitution as the source of their right to federal habeas review.[86]
The Military Commissions Act of 2006 amends the habeas statute by adding the following provision:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.[87]
This language makes no reference to constitutional habeas corpus. Does this provision suspend constitutional habeas corpus? If so, are the requirements of Article I, section 9 satisfied? Has there been a rebellion or invasion? Are the courts of the U.S. unable to function such that habeas needs to be suspended? In his dissent, Justice Scalia in Hamdi v. Rumsfeld noted that constitutional habeas may be suspended by legislative act.[88] Or does this language merely limit the authority of the district courts to hear statutory habeas claims? Although this provision of the Military Commissions Act makes no distinction between statutory and constitutional habeas corpus, denying both avenues for relief, especially to detainees who are also U.S. citizens, is potentially unconstitutional.
3. The Torture Statute
Extraordinary rendition may constitute a criminal conspiracy to commit torture in violation of the Torture statute. Pursuant to 18 U.S.C. § 371, congress has mandated punishment for anyone guilty of offenses against the United States. The phrase “offense against the United States” does not, however, require that the United States be the victim of the offense.[89] Under 18 U.S.C. § 2, anyone who commits or aids another in an offense against the United States is punishable as a principal. Conspiring to commit an offense against the United States is punishable by fine or imprisonment of not more than five years.
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QUESTIONS
1. In order for a court to have habeas jurisdiction over a petitioner’s claim, must the petition demonstrate that the prisoner is being held under color of the authority of the United States?
2. In 2005, as part of the Detainee Treatment Act, congress added the following provision to the habeas statute:
(e) . . . no court, justice, or judge shall have jurisdiction to consider—
(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba . . . .
28 U.S.C. § 2241 (2006). What would be the potential implications of this legislation for Rashul, Qassem, and Zammar? How could this amendment to the habeas statute affect available remedies for persons subjected to extraordinary rendition?
3. Is the writ of habeas corpus available to an individual like Qassem, who despite being removed from Iraq by U.S. officials is being held in Egypt under the custody of the Egyptian government?
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D. ADMINISTRATION SUPPORT FOR EXTRAORDINARY RENDITION
1. Administration Justifications for Extraordinary Rendition
The Bush administration has asserted that extraordinary renditions are vital to the nation’s defense.[90] One former CIA official argued in April 2005 that “the rendition program has been the single-most successful American counterterrorism program since 1995 until today.”[91] Use of extraordinary rendition to send suspects to third countries expanded in the mid-1990s when the CIA was charged with dismantling al Qaeda cells. Because the CIA lacked police powers and detention facilities, and because the White House did not want to bring the suspects into the U.S. legal system, the CIA enlisted the assistance of allies to arrest and detain terror suspects.[92] Today the official twin purposes of rendition appear to be immobilizing terrorism suspects and “facilitating interrogation.”[93] Under both the Clinton and Bush administrations, officials have been willing to accept assurances from the receiving country that suspects will be treated fairly and not tortured.[94] Officials claim that interrogation is facilitated in the hands of foreign allies:
not because of their coercive questioning techniques, but because of their cultural affinity with the captives. . . . [T]heir intelligence services can develop a culture of intimacy that Americans cannot. They may use interrogators who speak the captive’s Arabic dialect and often use the prospects of shame and the reputation of the captive’s family to goad the captive into talking.[95]
Many other justifications have been offered to defend extraordinary renditions. Some diplomats argue that secretive renditions avoid publicity and potential fundamentalist backlash in Muslim countries that could arise if the public were to learn that the United States was involved in a formal extradition.[96] Others argue that extraordinary rendition avoids lengthy court battles and reduces the chance that the suspect’s associates will learn of the capture.[97] Some support rendition as a cost-saving alternative to housing suspects in U.S.-run facilities.[98] More realistically, rendition may be a next-best alternative when criminal prosecution in the United States would run the risk of one of two dangers. First, prosecution could require disclosure of closely-guarded intelligence. Second, because the U.S. legal system prohibits the use of evidence obtained through torture or other ill-treatment,[99] it could become altogether legally impossible to prosecute because no U.S. officer could swear in court that the suspect was never ill-treated subsequent to arrest.[100]
2. Goldsmith Memorandum[101]
In the following memorandum, Assistant Attorney General Jack Goldsmith (who subsequently left his position at the Attorney General’s office and accepted a position as a Professor at Harvard Law School) advocates a narrow interpretation of the prohibition on deportations and forcible transfers from occupied territories under Article 49 of the Fourth Geneva Convention. Several relevant passages from Pictet’s Commentary follow the Goldsmith Memorandum.
* * * *
U.S. Department of Justice
Office of Legal Counsel
Office of the Assistant Attorney General
March 19, 2004
To: William H. Taft, IV, General Counsel, Department of State
William J. Haynes, II, General Counsel, Department of Defense
John Bellinger, Legal Adviser for National Security
Scott Muller, General Counsel, Central Intelligence Agency
From: Jack Goldsmith, Assistant Attorney General, Office of Legal Counsel
Gentlem[e]n:
Attached is a draft of an opinion, requested by Judge Gonzales, concerning the meaning of Article 49 of the Fourth Geneva Convention as it applies in occupied Iraq. I would appreciate any comments you may have at your earliest convenience. As always, it is important that you keep this draft opinion a very close hold. Thanks.
Attachment
* * * *
U.S. Department of Justice
Office of Legal Counsel
Office of the Assistant Attorney General
DRAFT 3/19/04
Memorandum for Alberto R. Gonzales, Counsel to the President
RE: Permissibility of Relocating Certain “Protected Persons” from Occupied Iraq
. . . [T]he United States may, consistent with article 49, (1) remove “protected persons” who are illegal aliens from Iraq pursuant to local immigration law; and (2) relocate “protected persons” (whether illegal aliens or not) from Iraq to another country to facilitate interrogation, for a brief but not indefinite period . . . .
I. Removal of “Protected Persons” Who are Illegal Aliens
. . . Under United States law, [“deportation”] denotes the removal of an alien. . . .
[Goldsmith first argues that the term “deportation,” as used in the Geneva Conventions, is a term of art which refers exclusively to the removal of persons who have a lawful right to remain in a place.]
. . . [A]rticle 49 was written against the background of World War II, and it is the particular atrocities of that war that most directly inform the text. In World War II, Nazi-occupied countries were treated as “vast reservoirs of manpower,” and deportations of civilians for purposes of forced labor and slave labor “assumed staggering proportions.” . . .
. . . [H]owever, there is no evidence that the outrage of the world extended to the removal of illegal aliens from occupied territory in accordance with local immigration law, and indeed there is no evidence that international law has ever disapproved of such removals. . . .
Article 49 prohibits “forcible transfers” in addition to “deportations.” We conclude that what has been said about the latter largely applies to the former. Passages from the ICRC Commentary and the negotiating record illustrate that the words “transfers” and “deportations” were used loosely and, at times, interchangeably to capture the atrocities practiced by the Nazis and the Japanese in occupied territories. . . .
Furthermore, at least when used in connection with “deportations” as a term of art in the international law of armed conflict, “transfers” also appears to connote the relocation of an individual from an area where he is lawfully present. . . .
We conclude, accordingly, that article 49(1)’s prohibition on “forcible transfers,” like its prohibition on “deportations,” does not extend to the removal, pursuant to local immigration law, of “protected persons” who are illegal aliens.
This conclusion . . . is . . . consistent with the general presumption under customary international law, as reflected in article 43 of the [1907 Hague Regulations], that an occupying power should maintain and enforce the domestic laws of the country occupied. . . . [R]eading GC to require a suspension of local immigration law would put great and unjustifiable strain on the duty of the occupying power to “insure . . . public order and safety.”
In sum, . . . the terms “deportations” and “forcible transfers” in article 49 are terms of art that do not apply to the removal of “protected persons” in occupied territory who are present there in violation of current local law. We conclude, therefore, that the United States would not violate article 49(1) by removing “protected persons” who are illegal aliens from Iraq pursuant to local immigration law.
II. Temporary Transnational Relocation of “Protected Persons” to Facilitate Interrogation
. . . [T]he phrase “forcible transfers” and the word “deportations,” when used as terms of art in the international law of armed conflict, . . . and especially when used in connection with each other, both convey a sense of uprooting from one’s home. . . . The concept of uprooting from one’s home clearly suggests resettlement, and while it may include not only permanent, but also extended or at least indefinite resettlement, it cannot reasonably be expanded to encompass mere temporary absence, for a brief and definite period, from one’s still-established home. . . .
This reading is confirmed by the Convention’s structure. . . . [I]f the word “transfer” were read to embrace all temporary relocations, however brief, it would create a prohibition inconsistent with a duty imposed by another provision of the Convention, cause a different paragraph of article 49 to create an implausible result, and render two other provisions of GC entirely superfluous. . . .
First, . . . . Article 24 provides: “The Parties to the conflict shall facilitate the reception of . . . children [who are under 15, who are orphaned or separated from their families as a result of the war] in a neutral country for the duration of the conflict . . . .” . . . [A]rticle 24’s duty to relocate certain children – including those who are “protected persons” – to a neutral country might appear to be flatly inconsistent with article 49(1)’s categorical prohibition of “forcible transfers” and “deportations” of “protected persons.” The relationship between articles 24 and 49(1) is easily understood, however, once it is recognized that the crux of article 29(1) is a prohibition on forcibly uprooting people from their homes. The children provided for in article 24 are precisely those who have been orphaned or separated from their homes already, by the war. Thus, relocating such children (even without their consent) does not implicate the central concerns of article 49(1).
Second, article 49(6) provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” (Emphasis added). As the ICRC commentary explains, this provision was “intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political or racial reasons or in order, as they claimed, to colonize those territories. . . .
. . . [A]rticles 49(1) and 49(6) address related wartime practice . . . by prohibiting certain transfers and deportations. There is a strong presumption that the same words will bear the same meaning throughout the same treaty. This presumption is particularly strong when, as here, the words appear multiple times within the same article.
If “transfer” is understood throughout article 49 to entail – consistent with technical usage – permanent, extended, or at least indefinite resettlement, then the scope of article 49(6)’s prohibition closely corresponds to its intended purpose. By contrast, if “transfer” is understood throughout article 49 to mean any relocation, however brief, then article 49(6) would . . . prohibit an occupying power from placing any members of its civilian population in the occupied country even temporarily. While such a prohibition arguably might not extend to civilian adjuncts to the military occupation administration, it probably would at least extend to various employees of private contractors and non-governmental organizations. . . . [I]t seems very implausible that article 49(6)’s prohibition of deportations and transfers into occupied territory should be construed so expansively. It follows, therefore, that article 49(1)’s prohibition of forcible transfers and deportations out of occupied territory likewise should not be construed to extend to temporary transnational relocations of brief but not indefinite duration.
Third, if article 49(1) banned all relocations out of occupied territory, no matter how brief, two different provisions of GC would be superfluous. Article 51 of GC, which makes provision for compelling the labor of “protected persons,” provides: “The work shall be carried out only in occupied territory where the persons whose services have been requisitioned are.” . . . While extended or indefinite relocations for purposes of forced labor might constitute “forcible transfers” and thus be prohibited under article 49(1) as well as article 51, at least some instances of briefly bringing an accused “protected person” across a border to engage in forced labor – on a daily basis, for example – would not fall within the scope of article 49 but would be barred by article 51.
Even more relevant to the issue at hand, article 76 of the Convention provides: “Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein.” . . . [I]f briefly relocating an accused “protected person” to a foreign country for detention and interrogation (though forbidden by article 76) is beyond the scope of article 49, then the otherwise indistinguishable act of briefly relocating a “protected person” who is not accused to a foreign country for detention and interrogation (which is not forbidden by article 76) must also fall outside the scope of article 49’s prohibition.
Thus technical usage suggests, and GC’s structure confirms, that Article 49(1)’s prohibition of “deportations” and “forcible transfers” does not extend to all transnational relocations. And, for the reasons we have explained, we conclude that it is permissible to relocate “protected persons” who have not been accused of an offense from Iraq to another country, for a brief but not indefinite period, for purposes of interrogation.[102]
III. Conclusion
Article 49 does not forbid the removal from occupied territory, pursuant to local immigration law, of “protected persons” who are illegal aliens. Nor does it preclude the temporary relocation of “protected persons” (whether illegal aliens or not) who have not been accused of an offense from occupied Iraq to another country, for a brief but not indefinite period, to facilitate interrogation.
E. INTERPRETIVE TOOLS FOR IMPLEMENTING THE GENEVA
CONVENTIONS AND THE CONVENTION AGAINST TORTURE
1. Geneva Civilian Convention Commentary
Several passages from Pictet’s Commentary to the Fourth Geneva Convention are relevant to understanding the Convention’s implications for the practice of extraordinary rendition. Some of the passages quoted below directly address arguments advanced by Jack Goldsmith in his memorandum.
a. Explanation of “protected persons” under the Civilian Convention
An important initial inquiry for each of the Geneva Conventions is a determination of which persons are protected under each convention. For example, the Third Geneva Convention affords protection for prisoners of war (POWs) and for persons whose POW status is in doubt. The Fourth Geneva Convention applies to certain categories of persons who are not POWs.
Under the terms of the Civilian Convention, nationals of neutral states “who find themselves in the territory of a belligerent State” are not protected persons as defined in Article Four.[103] Occupied territory, however, is no longer “the territory of a belligerent state;” therefore, nationals of neutral states automatically gain the status of protected persons when occupation begins. Hence, once occupation commenced, the U.S. was no longer engaged in hostilities against Iraq. As a consequence, nationals of neutral states in Iraq were no longer in the territory of a belligerent State, even though fighting in Iraq continued during occupation. Pictet explains the distinction:
[I]n occupied territory [nationals of neutral States] are protected persons and the Convention is applicable to them; its application in this case does not depend on the existence or non-existence of normal diplomatic representation. . . .
On the other hand, nationals of a neutral State in the territory of a Party to the conflict are only protected persons if their State has no normal diplomatic representation in the State in whose hands they are.[104]
Accordingly, under this interpretation, nationals of neutral states during occupation are persons protected by the Fourth Geneva Convention.
* * * *
Goldsmith presents a unique argument that the terms deportation and forcible transfer in Article 49 refer exclusively to the removal of persons lawfully present in a territory. Several passages from the ICRC Commentary shed light on the meaning of those terms.
b. Definition of deportation
Article 45 provides that “Protected persons shall not be transferred to a Power which is not a party to the Convention.”[105] Article 45 does allow for extradition, “in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law.”[106] But Article 45 makes no reference to deportation. In fact, Pictet notes that within Article 45 “there is no provision concerning deportation (in French expulsion), the measure taken by a State to remove an undesirable foreigner from its territory.”[107]
c. Transfer vs. Deportation
Pictet’s Commentary on Article 45 distinguishes between the words “transfer” and “deportation”:
Any movement of protected persons to another State . . . is considered as a transfer for the purposes of Article 45. The term “transfer”, for example, may mean internment in the territory of another Power, repatriation, the returning of protected persons to their country of residence or their extradition. The Convention makes provision for all these possibilities. On the other hand, there is no provision concerning deportation (in French expulsion), the measure taken by a State to remove an undesirable foreigner from its territory.[108]
* * * *
In arguing that the prohibition on forcible transfer of persons lawfully present in occupied territory does not include temporary removal, Goldsmith examines several provisions of the Fourth Geneva Convention. He concludes that implicit in those provisions is authorization to remove persons from occupied territory temporarily. Several passages from the ICRC commentary provide evidence of the drafters’ intent regarding whether the prohibition on forcible transfer from occupied territory in Article 49 is absolute or whether it allows for transfers under certain conditions.
d. Commentary to Article 49(6)
[Paragraph 6] provides protected persons with a valuable safeguard. It should be noted, however, that in this paragraph the meaning of the words ‘transfer’ and ‘deport’ is rather different from that in which they are used in the other paragraphs of Article 49, since they do not refer to the movement of protected persons but to that of nationals of the occupying Power.
It would therefore appear to have been more logical—and this was pointed out at the Diplomatic Conference—to have made the clause in question into a separate provision distinct from Article 49, so that the concepts of ‘deportations’ and ‘transfers’ in that Article could have kept throughout the meaning given them in paragraph 1, i.e. the compulsory movement of protected persons from occupied territory.[109]
e. Commentary to Article 51
The stipulation that protected persons may not be employed on work outside the occupied territory is already contained, as has been seen, in Article 49, paragraph 1, which contains a general prohibition of all “deportations”, but in view of the unhappy experiences of the last world war it seemed necessary to reaffirm that essential principle here.[110]
f. Commentary to Article 49
The prohibition [against deportations and forcible transfers in Article 49(1)] is absolute and allows no exceptions, apart from those stipulated in paragraph 2 [relating to emergency evacuations]. It is, moreover, strengthened by other articles in the cases in which its observance appeared to be least certain: in this connection mention may be made of Article 51, paragraph 2 [sic[111]], dealing with compulsory labour, [and] Article 76, paragraph 1, concerning the treatment of protected persons accused of offences or serving sentences . . . .[112]
2. Iraqi Immigration Laws
Goldsmith references two provisions of Iraq’s Law on Foreigners Residence[113] to demonstrate that Iraqi law grants authority to detain and deport foreigners (or “illegal aliens,” in Goldsmith’s language). The authority to deport, however, is limited to those foreigners in violation of Articles 3, 6, 8, 11, and 20 of the Law on Foreigners Residence.[114] Those articles include provisions requiring foreigners to: enter with a valid passport, obtain an entry visa, and fill in an arrival form; submit relevant information and photographs when applying for a visa; obtain an exit visa if present in Iraq subsequent to an employment contract; obtain a residence permit if wishing to stay beyond the time prescribed in the visa; and receive permission from the Minister of Interior if they wish to re-enter Iraq after having been deported.[115] These provisions must be executed consistent with other provisions of Iraqi law, as well as the Constitution of Iraq. In particular, Resolution No. 360 of 1991 eliminates the entry visa requirement for “Arabs and foreigners for which bilateral and multi[-lateral] agreements concluded among their states and the Republic of Iraq have been stipulated to exempt them from condition of getting the entry visa to Iraq on the basis of reciprocity.”[116] Hence, nationals of countries with visa-waiver reciprocity would rarely be in violation of the handful of Iraqi immigration laws which are considered to be deportable offenses. Additionally, the Law on Foreigners Residence excludes from its provisions “Arab citizens,” as long as they comply with the exit visa requirement imposed on foreigners present in the country due to work contracts.[117] Therefore, citizens of Arab countries are allowed visa-free entry, and could probably only be deported if they attempted to leave the country while under an employment contract in Iraq without first obtaining an exit visa.
3. Deportation of Jews During World War II
In 1935, all German Jews were stripped of their “citizenship,”[118] and in 1941 those German Jews living outside of Germany were deprived of their German “nationality.”[119] This “denationalization” facilitated the purportedly lawful deportation of many Jews from occupied Europe. As a first step in this deportation program, Adolf Eichmann was charged with effecting the “forced emigration” of Jews from Austria in 1938, which resulted in 45,000 Jews leaving the country in eight months.[120] Eichmann was then moved to Prague, where he instituted a similar program of forced deportations.[121] Once the war began and real (albeit forced) emigration was not possible, deportation became a means both to move Jews to extermination camps and to supply slave workers to German industries.[122] Germany, under Eichmann’s direction, therefore enlisted the cooperation of local authorities to strip Jews of their nationality,[123] so as to transform them into, as Goldsmith would call them, “illegal aliens.” In the spring of 1943, Hitler’s forces pressed for changes in occupied France’s local immigration and naturalization laws, thereby transforming Jews who had been lawful citizens of occupied France into deportable aliens.[124] Similar steps were taken in occupied Greece, occupied Holland, and occupied Hungary, among other places.[125] As Hannah Arendt observed, the Nazis took “extreme care” to “insist that all Jews of non-German nationality ‘should be deprived of their citizenship either prior to, or, at the latest, on the day of deportation’ . . . .”[126] A critical feature of the Nazi program was to change legal conditions so that Jews were no longer lawfully in their country of residence, and therefore could be deported.[127]
This historical background sheds light on Pictet’s use of quotation marks in the following passage from the ICRC Commentary, which was also quoted by Goldsmith:
There is doubtless no need to give an account here of the painful recollections called forth by the “deportations” of the Second World War, for they are still present in everyone’s memory. It will suffice to mention that millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions. These mass transfers took place for the greatest possible variety of reasons, mainly as a consequence of the formation of a forced labour service. The thought of the physical and mental suffering endured by these “displaced persons”, among whom there were a great many women, children, old people and sick, can only lead to thankfulness for the prohibition embodied in this paragraph, which is intended to forbid such hateful practices for all time.[128]
Here, Pictet is recalling a lesson of recent history: what an occupying power may call a “deportation” under local immigration law may actually be a pretense to serve some sinister purpose.
4. Court Decisions
a. Regarding Judicial Enforcement of the the Convention Against Torture
Application of the Convention Against Torture in U.S courts is complex, given the fact that the Senate stated that the treaty is not self-executing, and that the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) attempts to impose strict limits on judicial review of claims brought under Article 3 of the Torture Convention. FARRA states:
Notwithstanding any other provision of law, and except as provided in the regulations described in subsection (b), no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act.[129]
The use of habeas corpus to enforce provisions of the Convention Against Torture must be considered in light of the Supreme Court’s holding in Ex parte Yerger: “We are not at liberty to except from [habeas corpus jurisdiction] any cases not plainly excepted by law.”[130] Accordingly, in Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001), the Court held that a similar statutory restriction on judicial review of agency decisions did not bar habeas challenges unless Congress explicitly stated such a prohibition: “Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal.” Id. at 299. The Second Circuit, applying St. Cyr, held that § 2242(d) of FARRA does not bar habeas petitions under the Torture Convention.[131]
In Cornejo-Barreto v. Siefert, 218 F.3d 1004 (9th Cir. 2000) (footnotes omitted), the U.S. Court of Appeals for the Ninth Circuit construed State Department FARRA regulations. Cornejo-Barreto sought review of the “district court’s denial of habeas relief from a magistrate’s issuance of an extradition certificate . . .. The magistrate . . . found that petitioner is likely to be tortured if he is surrendered to [Mexico], but . . . nonetheless issued the extradition certificate. The United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”), to which the United States is a party, prohibits extradition if torture is likely. Our task is to determine what procedures are available to petitioner to assert his rights under the Torture Convention and the timing thereof.” Id. at 1007. The magistrate denied relief because
the regulations promulgated by the Department of State indicate that the Secretary’s duty is discretionary. See 22 C.F.R. § 95.4 (2000) (“Decisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review.”). We generally defer to an agency’s construction of the statute it administers. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 . . . (1984). We are required, however, to reject those interpretations that are contrary to Congressional intent. See id. at 843 n.9 (“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”). We therefore reject the argument, advanced by the government, that these regulations preclude judicial review of the Secretary’s extradition decisions.
Id. at 1014. The Ninth Circuit continued:
Congress indicated its preference for agency enforcement of the U.S. obligations under the Torture Convention in the FARR Act. This scheme is consistent with Article 3 of the Torture Convention, which states that “the competent authorities” are required to ensure that extraditees are not returned if there “are substantial grounds for believing” that the fugitive “would be in danger of being subjected to torture.” What would be contrary to both the statute and the Convention, is a finding that the Secretary’s decisions are wholly discretionary. Article 3 [of the Torture Convention] is written in mandatory, not precatory language: “no State Party shall . . . extradite” a person likely to face torture. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 441 . . . (1987) (discussing the difference between precatory and mandatory treaty language). FARRA is similarly forceful: U.S. agencies are directed to “implement the obligations of the United States under Article 3” of the Torture Convention. FARRA, § 2242(b). As a principle of statutory construction, “we generally construe Congressional legislation to avoid violating international law.” Ma v. Reno, 208 F.3d 815, slip op. at 3985 (9th Cir. 2000) (citing Weinberger v. Rossi, 456 U.S. 25, 32 . . . (1982) and discussing Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117–18 . . . (1804)). In this case, the most straightforward construction is perfectly consistent with international law.
Id.
Another panel of the U.S. Court of Appeals for the Ninth Circuit later held that the Secretary of State’s determination to extradite a fugitive is not subject to judicial review. Cornejo-Barreto v. Siefert, 379 F.3d 1075, 1089 (9th Cir. 2004). A majority of the Ninth Circuit voted to rehear the case en banc, but before the date of the rehearing, the Mexican government withdrew its request for extradition. Accordingly, the Ninth Circuit dismissed the case as moot and vacated the second panel decision thus depriving it of any precedential value. Cornejo-Barreto v. Seifert, 839 F.3d 1307 (9th Cir. 2004); see Cornejo-Barreto v. Siefert, 386 F.3d 938, 938 (“The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit .. ..”); Ridley v. McCall, 496 F.2d 213, 214 (5th Cir. 1974) (holding that a decision subsequently vacated, remanded, and found to be moot had no precedential value).
b. Committee Against Torture
The Committee Against Torture was established in Articles 17–24 of the Convention Against Torture. As is its prerogative under the Convention, the United States does not recognize the competence of the Committee to investigate complaints by individuals claiming to be victims of U.S. violations of the Convention.[132] The United States does, however, recognize the competence of the Committee to investigate complaints raised by States parties against other States parties, provided that both States parties agree to be subject to such competence.[133]
The jurisprudence of the Committee Against Torture is also relevant for other judicial bodies which may have cause to evaluate U.S. practices pursuant to their obligations under Article 5, which requires States parties to take measures necessary to establish jurisdiction over acts of torture when the alleged torture takes place in its jurisdiction and when the alleged offender is present in any territory under their jurisdiction.[134] Article 5 also allows State parties to take similar measures when the victim is a national of their state.[135] Additionally, if a State party is the country where the extraordinary rendition begins, and the State party assists or allows the extraordinary rendition to take place, that State party may be in violation of Article 3.[136] Hence, States parties may be obligated to take measures against U.S. participation in extraordinary rendition resulting from U.S. complicity in torture in violation of Article 4. The scope of Article 4, it should be noted, is not limited to the jurisdiction of the State party.
The Committee Against Torture in Agiza v. Sweden[137] directly implicated the U.S. practice of extraordinary rendition. Ahmed Agiza is an Egyptian national who left Egypt in 1991 and sought asylum in Sweden in 2000. During his absence, he had been tried in absentia in Egypt and sentenced to 25 years’ imprisonment.[138] On December 18, 2001, the Swedish government rejected his asylum application and ordered that he be deported immediately.[139] One news report indicated that Agiza was ordered deported because Sweden was under “international pressure,” and U.S. influence was an important factor.[140] Agiza and another Egyptian were immediately apprehended by Swedish police and then handed over to U.S. security personnel at the Bromma airport.[141] Those U.S. security personnel then subjected Agiza to “treatment in breach of, at least, Article 16 of the Convention” and took him to Egypt.[142] The U.S. provided transportation reportedly in an effort to expedite the deportation.[143]
The Committee Against Torture found that “it was known, or should have been known, to [Sweden]’s authorities at the time of complainant’s removal that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons.”[144] The Committee interpreted the harsh treatment of Agiza by U.S. agents at the airport as confirmation of “the natural conclusion” that Agiza was “at real risk of torture in Egypt in the event of expulsion . . ..”[145] The Committee therefore determined that Sweden had breached Article 3 of the Convention Against Torture.[146]
The Committee was particularly critical of the lack of opportunity for review of the decision to expel Agiza:
The Committee’s previous jurisprudence has been consistent with this view of the requirements of [A]rticle 3, having found an inability to contest an expulsion decision before an independent authority . . . to be relevant to a finding of a violation of [A]rticle 3.
. . . In the present case . . . there was no possibility for review of any kind of this decision. The Committee recalls that the Convention’s protections are absolute, even in the context of national security concerns, and that such considerations emphasize the importance of appropriate review mechanisms. While national security concerns might justify some adjustments to be made to the particular process of review, the mechanism chosen must continue to satisfy [A]rticle 3’s requirements of effective, independent and impartial review. . . . [T]he Government’s decision to expel the complainant does not meet the procedural obligation to provide for effective, independent and impartial review required by [A]rticle 3 of the Convention.[147]
d. International Court of Justice
On July 9, 2004, the International Court of Justice issued an advisory opinion on “the legal consequences of the construction of a wall in the Occupied Palestinian Territory.” The court examined Israel’s settlement policies under Article 49(6) of the Fourth Geneva Convention, which provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The court found that “the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6 . . .” and held that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (Int’l Ct. Justice July 9, 2004), para. 120, 43 I.L.M. 1009 (2004).
The court concluded that not only was Israel legally obligated to comply with Article 49(6), but also that the conflict raised erga omnes obligations—obligations that are the concern of all states and other actors. The decision stated that all States Parties to the Fourth Geneva Convention have the obligation “to ensure compliance by Israel with international humanitarian law as embodied in that Convention . . . .” Id. para. 163(3)(D).
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QUESTIONS
1. If the International Court of Justice has found that obligations under Article 49(6) are erga omnes, should obligations under Article 49(1) also be considered erga omnes, and also jus cogens?
2. Goldsmith, supra, draws on paragraph 6 of Article 49 to reinforce his interpretation of paragraph 1. Pictet’s Commentary, supra, indicates that the two paragraphs have different consequences and might have better been placed in separate articles of the Civilian Convention. Can those views be reconciled?
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F. ACTING ON INTERNATIONAL LAW IN NATIONAL COURTS, AGENCIES, AND LEGISLATURES
In the following comments, Judge Linde of the Oregon Supreme Court offers advice to lawyers on how to most effectively use international human rights law in federal and state courts, concluding with a reminder to work with the legislative and executive branches as well.[148]
Hans A. Linde, Comments, 18 Int’l Lawyer 77 (1984) (footnotes omitted):
I am here today not because I am an expert in international human rights law, but because I am a judge who has written an opinion which refers to that source of law. . . . You can take what I say as illustrative of what you may face in actually talking to a domestic court about international human rights law. . . .
. . . [I]t is largely taken as an article of faith that the United States provides the best protection for human rights in the world. If there are any rights recognized in international law that are not recognized in U.S. law, people may assume that there is a good reason for that nonrecognition. On the other hand, whether or not our protection of human rights is the best, there is a strong urge to agree that it should be the best. These ingrained perspectives give you both an opportunity and a challenge.
You may as well assume, simply as a matter of probability, that these views also are likely to prevail among the judges you will face. If we judges have not yet decided to recognize a certain right under one of the numerous, elastic clauses that are available to courts in this country, we probably believe that there is a good reason why we haven’t. A lawyer who comes to tell us that we should follow some principle because it is part of an evolving body of international human rights law has a lot of explaining to do. But we also take pride in American law as being in the lead on individual human rights. These attitudes, I think, are important in understanding what role international human rights materials can play in domestic courts.
It is potentially a powerful argument to say to a court that a right which is guaranteed by an American constitutional provision, state or federal, surely does not fall short of a standard adopted by other civilized nations.
It is a much more difficult, and riskier, argument to tell a court that it must displace some law of a state, or of the United States, with an external international standard.
A lawyer considering the use of international human rights law in a national court, state or federal, must consider carefully whether he or she means to claim the international document as a source of standards for the proper application of the nation’s own law, or as a source of legally binding obligations. A lawyer must tell a court clearly whether he or she is asserting a claim under international law, or presenting an international norm in support of a desired interpretation of our domestic law.
To point to the international standard as a goal or an achievement to be matched may prove very successful. To point to it as an external law to be obeyed may backfire. It may backfire because, unless the legally binding nature of the international source is clear and strong, opposing counsel and the court may give more time and attention to refuting the claim that the international source has binding force than to looking at the substance of the human rights in question.
The use of human rights norms as customary international law . . . is undeniably appealing. Here we have documents full of more or less eloquent and powerful language, adopted in many cases by unanimous vote in the United Nations, the Organization of American States, or the European Commission on Human Rights. Eminent authorities, including Frank Newman, Louis Sohn, Louis Henkin, and Anthony D’Amato, have devoted a great deal of very able effort to showing (1) that the “pledge” made by U.N. members under article 56 of the charter to take separate as well as joint action in cooperation with the organization to promote human rights created an obligation binding on the United States, and (2) that the aggregate international bill of human rights offers an authoritative, or at least persuasive, interpretation of the article 56 obligation.
I have little problem with those separate conclusions. Assuming they are correct, nevertheless, they are insufficient to establish the direct applicability of international documents in domestic courts. Incantation of the classic formula that the law of nations is part of the law of the United States, . . . by itself is not enough to establish that even the most widely accepted norms of human rights law displace American law in American courts.
The U.N. Charter, of course, is a treaty and part of the “supreme law of the land.” But the Universal Declaration on Human Rights was deliberately drafted not to be a treaty. Other human rights documents that were drafted to be treaties or covenants have not been ratified by the United States. These have been deliberate governmental decisions not to undertake certain legal obligations, made with full attention to the choices among instruments that are designed to create one or the other legal effect.
The problem in establishing that a provision of an international document binds our courts as domestic law is that you must show a decision on the part of our government to be so bound. And you cannot show such an intention regarding any instrument other than treaties or similar formal agreements. Other declarations and draft conventions are entered into simply by presidential instruction to ambassadors. They reflect no more than a presidential decision that a certain stance in one of the international forums, or a particular speech, or a vote for a specific declaration advances the foreign policy interests of the United States. Presidents generally do not mean to make domestic law by these means. Ordinarily they take great care to reassure everyone, including the Congress, that they are not making any law binding on this country by voting for or even signing international human rights documents. Even when a President has signed a draft convention that is intended to be a proposed treaty, he or his successor often has decided not to submit the convention for the advice and consent of the Senate, or perhaps to submit it with the explicit reservation that the ratified treaty would have no domestic effect.
For instance, Dean Rusk, who worked with Eleanor Roosevelt in her efforts to have the Universal Declaration of Human Rights unanimously adopted, wrote in a recent article that it was perfectly well understood at the time that the declaration would have no legal consequences within the United States. . . .
Human rights enthusiasts understandably welcome any theory that promises to promote human rights without too much scrutiny of its implications. But the trouble with theory is that it always extends beyond the immediate case. We have learned to be cautious about unilateral executive power to act in domestic affairs, say, to settle a labor dispute by seizing the steel industry. Why should the executive have more domestic power by agreeing with other governments, say, to assure equal employment rights in the steel industry? If the president can make human rights law for the United States by having an ambassador make a speech, negotiate a declaration, or cast a vote in the General Assembly, can he make other kinds of American law by the same means? Could he, for instance, act on his own to override the property law of the states and transfer property from one claimant to another?
. . . I have no doubt that the United States could commit itself to expend money by ratification of a treaty. But this is far from empowering a court to mandate a state to spend money in order to help the United States achieve some general treaty goal, even at the wish of the national executive. . . .
In short, if you are to succeed with your argument that a provision of human rights law is law in a domestic court, you must be able to show that the national lawmakers, by treaty or otherwise, intended this effect. This, at least, is the kind of skeptical reaction that a lawyer is likely to meet if he or she tries to convince a court to apply purely declaratory international human rights documents as legally binding on the court. But often there is no need to take on that burden.
If instead, you argue that a court should look to international instruments to assist it in interpreting a domestic statute or constitution, then you are asking the court to do what it is empowered to do and using international law in the process. Moreover, an advocate wishing to invoke international human rights norms reasonably could argue that an applicable domestic law already contains the protections that the claimant contends, but that, if the court were not to accept this view, then the court might well find itself running afoul of national policy as expressed by the United States government through its participation in international human rights activities and declarations.
. . . So if the court is persuaded of the merits of a particular human rights claim, the court almost certainly can recognize that claim under a clause of a state constitution or of the federal constitution without venturing onto the thin ice of making doubtful precedents about the domestic effect of executive declarations in international forums.
I venture a guess that arguments invoking international human rights standards would have the greatest chance of success in matters where the claim invokes an issue of international interest, or where other countries and international agencies have had greater experience than has the United States. Examples may include linguistic, religious and nationality groups, and the treatment of detained persons.
In conclusion, I want to leave you with a theme that for twenty years has been a favorite of Frank Newman’s and mine and that Paul Hoffman also mentioned, namely, that it is a grave mistake to think that courts are the only forums in which human rights law is made or developed. The harder, less immediately rewarding, but more important pursuit of international human rights, as of other policies, occurs not in the courts, but in persuading those responsible for policy-making, in the Congress, the State Department, and the White House that Americans care about human rights abroad as well as at home.
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NOTES AND QUESTIONS
1. Aside from cases involving extraordinary rendition and the execution of juvenile offenders, are there other subjects as to which international human rights law would be helpful in improving U.S. law and practice? See, e.g., chapter 12, supra (discrimination against homosexuals, the use of the death penalty, corporal punishment); chapter 15, infra (refugee and asylum law); and chapter 8, supra (use in the context of criminal law). In addition to those subjects, below is a sample of cases in which international human rights and humanitarian law have been used in U.S. courts to and administrative agencies to improve or respond to situations in this country.
Rights of Medical Patients
2. The relatives of former patients at the Cincinnati General Hospital brought a suit for damages alleging that the former patients were subjected to radiation experiments and were unaware of being exposed to radiation from 1960 to 1972 without having consented to the experiments. In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995). The federal district court determined “whether the conduct alleged by Plaintiffs was clearly unconstitutional when the Human Radiation Experiments were performed.” Id. at 814. Having reviewed such U.S. Supreme Court cases as Skinner v. Oklahoma, 316 U.S. 535 (1942) (sterilization of habitual criminals violates Equal Protection Clause); Rochin v. California, 342 U.S. 165 (1952) (forced stomach pumping of a drug suspect “shocked the conscience” and violates the Due Process Clause); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory vaccinations for smallpox); and Schmerber v. California, 384 U.S. 757 (1966) (compulsory blood test of suspected intoxicated driver is reasonable), the district court concluded:
The preceding demonstrates that the constitutional law controlling the invasion of an individual’s bodily integrity was clearly established between 1960 and 1972. Indeed, the prevailing law detailing the right was sufficiently clear that a reasonable official would have known that the Human Radiation Experiments violated constitutional law. Accordingly, that law provides an independent basis for the Plaintiffs’ Section 1983 action. Nevertheless, it is impossible for the Court to ignore the historical context in which the Human Radiation Experiments were conducted.
After World War II, the United States and its allies were involved in a succession of criminal trials. . . . Perhaps the best known Nuremberg trial involved the military officers of the Third Reich. The doctors’ trial, United States of America v. Carl Brandt, et al., I Trials of War Criminals, Vol. 11 at 181 (1949); 6 F.R.D. 305 [*820] (1949), also known as the “Medical Case”, was tried at the Palace of Justice in postwar Nuremberg, Germany. The trial was conducted under U.S. military auspices according to . . . the London Agreement (August 8, 1945).
The Nuremberg tribunal was asked to determine the culpability of twenty-three (23) German physicians under “the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.”. . . The charges against the physicians included human experimentation involving nonconsenting prisoners. The experiments included studies of the limits of human tolerance to high altitudes and freezing temperatures. Medically-related experiments included inoculation of prisoners with infectious disease pathogens and tests of new antibiotics. . . .
Throughout the trial, the question of what were or should be the universal standards for justifying human experimentation recurred. “The lack of a universally accepted principle for carrying out human experimentation was the central issue pressed by the defendant physicians throughout their testimony.” . . .
The final judgment of the court was delivered on July 19, 1947. The judgment has since become known as the “Nuremberg Code.” The first provision of the Code states as follows:
The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. . . .
The Nuremberg Code is part of the law of humanity. It may be applied in both civil and criminal cases by the federal courts in the United States. At the very least, by the time the Human Radiation Experiments were designed, the Nuremberg Code served as a tangible example of conduct that “shocked the conscience,” as contemplated in Rochin, supra. Rochin came only five years after the Nuremberg trials. Certainly Justice Frankfurter and the other members of the Court were influenced by the state-sponsored atrocities delineated in the Medical Case. Thus, even were the Nuremberg Code not afforded precedential weight in the courts of the United States, it cannot be readily dismissed from its proper context in this case. The individual and Bidens Defendants, as physicians and other health professionals, must have been aware of the Nuremberg Code, the Hippocratic Oath, and the several pronouncements by both world and American medical organizations adopting the Nuremberg Code. It is inconceivable to the Court that the individual and Bidens Defendants, when allegedly planning to perform radiation experiments on unwitting subjects, were not moved to pause or rethink their procedures in light of the forceful dictates of the Nuremberg Tribunal and the several medical organizations.
874 F.Supp. At 819-22 (footnotes and some citations omitted).
Accordingly, the district court denied the motion to dismiss concluding that the doctrine of qualified immunity does not insulate the defendants “from liability for their deliberate and calculated exposure of cancer patients to harmful medical experimentation without their informed consent. . . .” Id. at 822.
3. In Conservatorship of Hofferber, 616 P.2d 836, 844 (1980), the court cited international law in support of the conclusion that the state has compelling interests in preventing inhumane treatment of the mentally disturbed.
Rights of the Family
4. In Lipscomb v. Simmons, 884 F.2d 1242 (9th Cir. 1989) (per curiam) the court surveyed sources of international human rights law, including the International Bill of Rights and the American Convention on Human Rights, in concluding that the right to live with one’s family is fundamental and, accordingly, that Oregon violated due process rights by denying foster care funding to children who live with close relatives. This case was later overruled by the Ninth Circuit sitting en banc in Lipscomb v. Simmons, 962 F.2d 1374, 1384 (9th Cir. 1992).
5. In Santa Barbara v. Adamson, 610 P.2d 436, 439 (1980), an ordinance prohibiting unrelated persons from living together in a family-residence zone violated the right of privacy under the California Constitution. The court cited international law in support of its conclusion that the right of privacy exists in one’s home as well as within the family. Cf., People v. Privatera, 591 P.2d 919, 946 (1980) (Newman, J. dissenting).
Rights of the Child
6. In Batista v. Batista, 1992 WL 156171 (Conn. Super. Ct. June 18, 1992), the court invoked provisions of the Convention on the Rights of the Child in determining that the views of a 15-year-old girl should be considered by the court in settling a custody dispute between her parents. The girl’s mother resided in Spain, a party to the Convention. The court stated that “it is of great concern and embarrassment that the United States of America is not a [party] to [the] convention.” Id. at *6.
7. In Adopton of Peggy, 767 N.E.2d 29, 32 (Mass. 2002), the court held that the Massachusetts Department of Social Services appropriately terminated the parental rights of a nonimmigrant alien father to his nonimmingrant alien child for, inter alia, being exposed to female genital mutilation. Among other things, the court concluded that although the Convention on the Rights of the Child is not binding on the courts, “the outcome of the proceedings in this case are completely in accord with principles expressed [in the Convention].” Id. at 37. The court referred specifically to the language in article 3 (“in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”) and article 19 (“[parties to the convention] shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical . . . violence, injury or abuse . . . while in the care of parent(s) . . .”). Id.
8. In In re Julie Anne, 780 N.E.2d 635, 652 (Ct. Com. Pl. Juv. Div. 2002), the Juvenile Division of the Ohio Court of Common Pleas noted that “[b]ecause the Convention [on the Rights of the Child] creates obligations for signatory governments to ensure children’s right to the highest attainable standard of health, the involuntary harmful exposure of children to secondhand smoke can be seen as a human rights violation.”
Rights of Accused Persons and Prisoners
9. In Lareau v. Manson, 507 F. Supp. 1177 (D. Conn. 1980), the federal district court considered a claim of overcrowding and other poor conditions in the Hartford Community Correctional Center (HCCC) by prisoners detained pending trials on criminal charges and convicted inmates serving sentences of imprisonment. The court referred to the U.N. Standard Minimum Rules for the Treatment of Prisoners, Article 7 of the International Covenant on Civil and Political Rights, and Article 5 of the Universal Declaration of Human Rights in supporting its understanding of the Due Process Clause of the Fourteenth Amendment. The court noted that the defendants in that case—the Connecticut Department of Correction— “have embraced these international standards. In 1974, the defendants adopted the Standard Minimum Rules as the preamble to the Administrative Directives of the Connecticut Department of Correction. This action was apparently taken pursuant to Commissioner Manson’s statutory mandate to promulgate “rules for administrative practices . . . in accordance with recognized correctional standards.” Conn. Gen. Stat. § 18-81 (emphasis added). . . .” “. . . In these circumstances, the court cannot avoid holding that the defendants have violated their duty under the Eighth Amendment to provide adequate housing for convicted inmates at the HCCC. . . .” The U.S. Court of appeals affirmed the trial court’s findings of liability but remanded the case for reconsideration of the remedy. Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981).
10. U.S. courts have looked to the Human Rights Committee’s interpretations of the Civil and Political Covenant for guidance in construing its provisions. United States v. Duarte-Acero, 208 F.3d 1282, 1287 (11th Cir. 2000) (labeling the Committee’s guidance “most important[]” component in interpreting the Covenant on Civil and Political Rights, in rejecting a claim that the Covenant barred successive criminal prosecutions in two or more jurisdictions); United States v. Benitez, 28 F. Supp. 2d 1361, 1364 (S.D. Fla. 1998) (referring to the Human Rights Committee’s interpretation of Article 14(7) in rejecting a similar claim of double jeopardy).
11. In Kane v. Winn, 319 F. Supp. 2d 162 (D. Mass. 2004), the federal district court applied several international law mechanisms to examine whether the medical treatment provided by the defendant warden to the plaintiff inmate met constitutional and statutory standards. Although the court ultimately granted summary judgment in favor of the warden, it construed and applied international human rights law liberally in favor of the inmate to prevent initial dismissal of the case. Referring specifically to the Convention Against Torture and the International Covenant on Civil and Political Rights, the court indicated that international law “places limits on the suffering that can be imposed on prisoners, and requires states to provide a remedy for violations of prisoners’ human rights.” Id. at 195. Moreover, citing Filartiga v. Pena-Irala, see infra pp. 764–67, the court stated that “[t]here is little doubt that the prohibitions against torture and cruel and unusual punishment and the requirement that remedies be provided for violations of prisoners’ human rights have become customary international law.” In making this determination, the court looked for evidence of opinio juris in treaties and non-treaty human rights instruments, the reports of international bodies addressing torture and cruel or unusual punishment, proposals such as those issued by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, regional conventions and treaties, and the activities of nongovernmental actors. Id. at 197–200.
In a footnote, the court also addressed international obligations regarding equal protection:
A more complete examination of the role of international law in domestic prisoners’ rights cases might well require a discussion of the international legal prohibitions against discrimination on the basis of race and other immutable or quasi-immutable characteristics, given the high proportion of members of marginalized groups in the prison population. Along these lines, the Court notes that the prohibition against racial discrimination has been affirmed in many treaties, undoubtedly has the status of customary international law and jus cogens, and places greater affirmative obligations on government than does the Equal Protection Clause of the Fourteenth Amendment to remedy past discrimination and to avoid actions that unnecessarily produce a disparate impact on racial minorities.
Id. at 196. In support of that proposition, the court cited the U.N. Charter, American Convention on Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, and the Restatement (Third) of the Foreign Relations Law of the United States. Id. Moreover, the court cited Belgium v. Spain, 1970 I.C.J. 3, 32, noting that “international law has outlawed racial discrimination, and that the obligation not to engage in such discrimination is an obligation erga omnes.”
12. In Bott v. DeLand, 922 P.2d 732 (Utah 1996), the Utah Supreme Court considered a prisoner claim that he had been “treated with unnecessary rigor” in violation of Article I, section 9 of the Utah Constitution and was entitled to damages. In considering the state’s contention that Article I, section 9, could not be the basis for a damages claim, the court relied upon the Oregon Supreme Court’s reasoning in Sterling v. Cupp, 290 Or. 611, 625 P.2d 123 (1981),
under the unnecessary rigor clause of the Oregon Constitution, article I, section 13. The court, noting that the heart of the unnecessary rigor provision was its ability to embody evolving touchstones of humanity, based this standard upon internationally accepted standards of humane treatment as articulated in the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Standard Minimum Rules for the Treatment of Prisoners adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955.
Bott, 922 P.2d at 740. The court held that “the state constitutional provision against unnecessarily rigorous treatment of prisoners, article I, section 9, provides a basis for an award of monetary damages if a prisoner proves that a prison employee was deliberately indifferent to his medical needs or subjected him to clearly excessive or deficient and unjustified treatment.” Id. at 744.
13. In U.S. v. Bakeas, 987 F. Supp. 44 (D. Mass. 1997), a U.S. district court convicted a Greek citizen who had been a permanent resident in the U.S. of the crime of embezzlement. The applicable sentencing guidelines called for a 12-month custodial sentence in a medium security prison. For a U.S. citizen convicted of the same crime, the guidelines set punishment at 12 months in a minimum security community treatment center. Departing from the sentencing guidelines, Judge Nancy Gertner observed that the practice of assigning aliens more restrictive conditions of confinement might not survive scrutiny under the Eighth Amendment. Moreover, the judge noted that
[t]he federal policy may also violate this nation’s commitments under the International Covenant on Civil and Political Rights, to which we became a party in 1992. Article 2 expressly prohibits discrimination on the basis of “status,” including alienage—a prohibition that, ironically, the United States was instrumental in including in the Convention’s initial drafts. The Human Rights Committee charged with enforcing the Convention has repeatedly made clear that the prohibition of discrimination is a guiding principle for the ICCPR as a whole and should inform the application of all of its provisions, including Article 9, governing detention. The only areas in which discrimination against aliens is permissible under the ICCPR are in the exercise of political rights, such as voting and running for office. Although the United States sought to “clarify” that it would be bound by its own understanding of discrimination, rather than that of the international community, the Human Rights Committee has the ultimate authority to decide whether parties’ clarifications or reservations have any effect. Given the centrality of non-discrimination to the ICCPR, it is unlikely that the Committee would allow the U.S. to carve out its own separate definition of its obligations under international law.
Id. at 46 (citations omitted).
Right to Education
14. Further, in Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979), the West Virginia Supreme Court cited the Universal Declaration of Human Rights in holding education to be a fundamental right under the West Virginia Constitution. Other state courts, however, have found that education is not a fundamental right. These courts relied on a Supreme Court case holding education is not a fundamental right protected by the U.S. Constitution, San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973), rather than international standards. See Connie de la Vega, The Right to Equal Education: Merely a Guiding Principle or Customary International Legal Right, 11 Black Letter L.J. 37, 55 (1994).
Other Economic Rights
15. In Moore v. Ganim, 233 Conn. 557, 660 A.2d 742 (1995), the Connecticut Supreme Court refused declaratory and injunctive relief against Bridgeport to prevent it from terminating the general assistance benefits. The fundamental premise of the plaintiffs’ claims was that the state has an obligation under the Connecticut Constitution to supply them with subsistence level resources irrespective of the availability of food and shelter from family, friends, charitable organizations, religious institutions and other community sources. Chief Justice Peters concurred in the result of the four-judge majority, because the plaintiffs had not shown they were entitled to injunctive relief, but on the merits of the claim stated:
Contrary to the view of the majority, I am persuaded that the Connecticut constitution includes a governmental obligation to provide a minimal safety net to our poorest residents. As all of our historical sources indicate, the framers of our constitution believed that the government that they were establishing would not be permitted to stand idle while people, without food, shelter, clothing or medical care, were left to die in the streets.
660 A.2d at 771–72.
Justice Peters found support in the historical background of the Connecticut Constitution, as well as an “impressive array of contemporary sociological, economic and legal texts support the recognition of such a governmental duty” id.:
These contemporary economic circumstances and contemporary conceptions of democracy already have led the international community to incorporate a right to subsistence into the international law of human rights.’ For example, article 25(1) of the Universal Declaration of Human Rights declares that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” Universal Declaration of Human Rights (1948) . . . .
Article 11(1) of the International Covenant on Economic, Social and Cultural Rights International Covenant), which supersedes the Universal Declaration of Human Rights for the 104 states that are parties to it, similarly provides that “[t]he States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right. . . .” International Covenant on Economic, Social and Cultural Rights, . . . see also Centre for Human Rights, United Nations, Right to Adequate Food as a Human Right (1989); The Right to Food: Guide Through Applicable International Law (K. Tomasevski ed. 1987); Symposium, “The Right to Food: The International Perspective,” 30 Howard L.J. 223 (1987); The Right to Food (P. Alston & K Tomasevski eds. 1984). . . .
Although the United States is not a party to the International Covenant, and although no right to subsistence may yet apply to this country as part of customary international law; see, e.g., R. Bard, “The Right to Food,” 70 Iowa L.Rev. 1279, 1289 (1985); the wide international agreement on at least the hortatory goals identified in the human rights documents strongly supports the plaintiffs’ claim. See B. Stark, “Economic Rights in the United States and International Human Rights Law: Toward an ‘ Entirely New Strategy,’” 44 Hastings L.J. 79 (1992) (arguing that International Covenant should be read to inform United States state courts’ interpretation of state constitutions); Comment, “Human Rights and Basic Needs: Using International Human Rights Norms to Inform Constitutional Interpretation,” 34 U.C.L.A. L. Rev. 1195 (1987) (same); see also Boehm v. Superior Court, 178 Cal.App.3d 494, 502, 223 Cal. Rptr. 716 (1986) (relying on Universal Declaration of Human Rights to interpret state statutory duty to support poor); cf. Sterling v. Cupp, 290 Or. 611, 617 n. 9, 622 and n. 21, 625 P.2d 123 (1981) (relying on the Universal Declaration of Human Rights to interpret state constitutional provision relating to treatment of prisoners).
In sum, our constitutional framers, the contemporary academy, and the international community all support the conclusion that the government may not stand idle while its poorest residents die in the streets because of lack of food, shelter, clothing or medical care. The government has wide discretion in implementing its constitutional obligation and in imposing reasonable conditions on the provision of minimal support. The government, nonetheless, has a constitutional obligation to provide minimal subsistence. . . .
660 A.2d 742, 780–82 (footnotes and some citations omitted).
Associate Justice Berdon, joined by Associate Justice Katz, dissented stating:
It is clear to me that the preamble to our state constitution establishes an implicit right of destitute persons of Connecticut to receive those things necessary for minimal subsistence--minimal shelter, food and essential medical care. . . .
The concurring opinion of the Chief Justice, on the other hand, concludes that there is a state constitutional right to minimal subsistence. Although I agree with much of the scholarly constitutional analysis contained in the concurrence, I disagree both with its formulation of the extremely limited quality of this right and with its conclusion that there is an insufficient record . . . to sustain the appeals of these poor plaintiffs. . . .
660 A.2d 742, 783–85 (footnotes omitted).
16. In Boehm v. Superior Court, 223 Cal. Rptr. 716 (Cal. 5th Dist. Ct. App. 1986), the court cited international law in concluding that a county was required to include clothing, transportation, and medical care when dispensing minimum subsistence grants.
17. In Allmond v. Florida Department of Children and Families, 2005 U.S. Dist. LEXIS 21543, at *2 (M.D. Fla. Sept. 28, 2005), the plaintiffs alleged in their complaint that the state had violated the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, and the Customary International Law of Human Rights, by denying their application for food stamps.
18. In the United States, workers and their unions do not always benefit from all the labor rights and freedom of association guarantees in International Labor Organization conventions. The ILO Committee on Freedom of Association found the United States to be in violation of the freedom of association for permitting employers to hire permanent replacement workers during a strike:
The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally. The Committee considers that, if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.
ILO Committee on Freedom of Association, Complaint against the Government of the United States presented by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) Report No. 278, Case No. 1543 (1991).
In 2002, the Supreme Court held that an undocumented immigrant, who had been fired for union-organizing activities, was not entitled to back pay as a remedy for the employer’s unfair labor practices. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). The Court reasoned that allowing an unauthorized non-citizen to collect back pay would contradict Congress’ intentions when it passed the Immigration Reform and Control Act of 1986 (IRCA), which made “combating the employment of illegal aliens” central to immigration policy. Id. at 147. Under IRCA, it is impossible for an undocumented non-citizen to obtain employment within the United States without either the employer or employee “directly contravening explicit congressional policies.” Id. at 148. Since awarding back pay “runs counter to policies underlying IRCA . . . the award lies beyond the bounds of the [NLRB’s] remedial discretion.” Id. at 149. The Court noted that Hoffman was not unpunished as a result of this decision, as it would still be required to “(1) cease and desist from further violations of the NLRA, [and] (2) post a detailed notice to its employees regarding the [NLRB’s] remedial order.” Id. at 140.
The AFL-CIO and the Confederation of Mexican Workers (CMW) filed a complaint with the ILO, claiming that the Supreme Court’s decision violated the freedom of association rights of workers in the U.S. Reports of the ILO Committee of Freedom of Association No. 332 para. 555 (LXXXVI, 2003, Series B, No. 3) re: Case No. 2227 (United States) October 18, 2002. The ILO found that the remedies available post-Hoffman are “likely to afford little protection to undocumented workers who can be indiscriminately dismissed for exercising freedom of association rights without any direct penalty aimed at dissuading such action.” Id. para. 609. The Committee ultimately concluded that “the remedial measures left to the NLRB in cases of illegal dismissals of undocumented workers are inadequate to ensure effective protection against acts of anti-union discrimination.” Id. para. 610.
The Mexican Government sought review in the Inter-American Court of Human Rights of the Supreme Court’s ruling in Hoffman Plastic. The Inter-American Court noted that governments are not required to allow the employment of undocumented non-citizen workers. But, once the workers are employed, they may not be subject to discrimination. The Inter-American Court further has held that, with respect to labor rights, members of the Organization of American States may not put undocumented migrant workers at a legal disadvantage as compared with legal residents or citizens. Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, September 17, 2003, Inter-Am. Ct. H.R. (Ser. A) No. 18 (2003).
Voting Rights
19. In Kessler v. Grand Cent. Dist. Management Ass’n, Inc., 158 F.3d 92, 118 (2d Cir. 1998), plaintiff tenants claimed that a New York law requiring that the management board of a “business improvement district” consist of a majority of property owners denied them equal voting power in violation of the Equal Protection Clause of the Fourteenth Amendment. In dissent, Judge Weinstein argued that the power to vote “is deemed a basic right by international consensus,” as illustrated by provisions in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.
20. In Igartua-de la Rosa v. United States, 417 F.3d 145, 146–49 (1st Cir. 2005), the First Circuit Court of Appeals sitting en banc rejected a claim by a United States citizen resident in Puerto Rico that the United States was in violation of various treaties for failing to take steps necessary to ensure a presidential vote to citizens of Puerto Rico. Consideration of this claim, however, by two dissenting circuit judges is noteworthy.
The first dissenting judge referred to four international instruments relevant to the issue of voting rights. Id. at 171. First, the judge quoted the Universal Declaration of Human Rights which states:
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
. . . [and that]
3. The will of the people shall be . . . expressed in periodic and genuine elections which shall be by universal and equal suffrage . . . .
Id. at 171–72. Second, the dissent referenced Article XX of the American Declaration of the Rights and Duties of Man which states that “every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections . . . .” Id. at 172. Third, the dissent referred to the Inter-American Democratic Charter of the Organization of American States which was adopted on September 11, 2001. The dissent noted three relevant provisions:
Article 2
The effective exercise of representative democracy is the basis for the rule of law and constitutional regimes of the member states . . . .
Article 3
Essential elements of representative democracy include, inter alia . . . holding of periodic, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people . . . .
Article 6
It is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition for the full and effective exercise of democracy . . . .
Id. at 172–73. Finally, the dissent quoted the International Covenant on Civil and Political Rights (Civil and Political Covenant) which states that “every citizen shall have the right and the opportunity . . . to vote . . . at genuine periodic elections which shall be by universal and equal suffrage . . . .” Id. at 173. The dissent further noted that in ratifying the Civil and Political Covenant, the United States agreed to take steps to implement the obligations undertaken in the Covenant and that it was in violation of those binding obligations. Id. at 173, 175. Moreover, relying on the “proliferation and widespread acceptance of, and compliance with, international instruments that specifically require a right to equal political participation by all citizens,” the dissent would have recognized that right to be an enforceable norm of customary international law which the United States was in violation of with respect to the residents of Puerto Rico. Id. at 177–79.
The second dissenting judge argued that the congressional declaration that the Civil and Political Covenant will not be self-executing should be given “some weight,” but that according to the principle of separation of powers, it is ultimately the court’s duty “to examine independently the intentions of the treatymakers to decide if a treaty, by its own force, creates individually enforceable rights.” Id. at 186. Thus, an independent judicial determination would have required permitting the parties to further develop a record concerning the Civil and Political Covenant. Id. at 192.
21. In Ballentine v. United States, the Court addressed the concept of colonialism and the resulting deprivation of constitutional rights for United States citizens living in the Virgin Islands. 2001 U.S. Dist. LEXIS 16856 (D.V.I. October 15, 2001). Of particular concern to the plaintiff was the right to a regular voting representative in Congress and the right to vote for President. Id. at *2. The court addressed a series of infamous cases called the Insular Cases in which the Supreme Court, in the first quarter of the 20th Century and with heavy racial undertones, developed a doctrine that concluded that “only those provisions of the Constitution that are essential, or ‘fundamental,’ apply automatically to so-called unincorporated territories . . . .” Id. at *20. One component of this diminished citizenship was the absence of representation in Congress, and no right to vote in Presidential elections.
The court then indicated that “developments in international law raise substantial questions about the continued application of the Insular Cases to deny Virgin Islanders the same rights afforded all United States citizens residing in the fifty states.” Id. at *40. The court referred specifically to the Declaration on the Granting of Independence to Colonial Countries and Peoples that was adopted by the U.N. General Assembly in 1960 as part of a U.N. campaign to eradicate colonialism as a matter of international human rights. Id. at *41–43. Although this declaration was not originally binding on the United States, the court concluded that the obligations became binding when the United States ratified the International Covenant on Civil and Political Rights (Civil and Political Covenant). The court referred to several provisions of the Civil and Political Covenant, including Article 1, paragraph 3 which states that, “[t]he States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.” Id. at *47. Additionally, the court cited Article 25 which provides:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [such as race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.
Id. at *48. The court concluded by ordering supplemental briefing on several questions including how international obligations generally, and the Civil and Political Covenant in particular, affect the analysis of the issues raised in the case, and whether the United States is under an affirmative obligation to execute the Civil and Political Covenant. Id. at *53.
Other Rights of Non-Citizens
22. The U.S. Court of Appeals for the 11th Circuit summarized the facts of Gonzalez v. Reno, 212 F. 3d 1338 (11th Cir. 2000), as follows:
In December 1993, [Elian Gonzalez] was born in Cuba to Juan Miguel Gonzalez and Elizabeth Gonzalez. When [Elian] was about three years old, Juan Miguel and Elizabeth separated. Elizabeth retained custody of Plaintiff after the separation. Juan Miguel, however, continued to have regular and significant contact with his son. [Elian], in fact, attended school in the district where his father lived and often stayed at Juan Miguel’s home.
In November 1999, Elizabeth decided to leave Cuba and to take her son to the United States. In the pre-dawn hours of 22 November, Plaintiff and Elizabeth, along with twelve other Cuban nationals, left Cuba aboard a small boat. The next day, the boat capsized in strong winds and rough seas off the coast of Florida. Eleven of the passengers, including Elizabeth, died. Plaintiff, clinging to an inner tube, endured and survived.
The U.S. Government originally placed Elian in the custody of his uncle, Lazaro Gonzalez, who resided in Miami. His father, still residing in Cuba, requested his son’s return. In resolving issues of guardianship and an application of asylum, the INS referred to the duties of the U.S. under international law, as demonstrated in the following excerpt from Bo Cooper, General Counsel, Immigration and Naturalization Service (INS) of the U.S. Department of Justice, Memorandum for Commissioner INS Doris Meissner, January 3, 2000: . . .
B. Elian’s asylum application
. . . the United Nations Convention on the Rights of the Child requires state parties to:
take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights.
United Nations Convention on the Rights of the Child, Article 22, 28 I.L.M. 1448, 1464 (1989).
Neither section 208 of the INA, nor the Convention on the Rights of the Child, however, addresses whether a child may assert a claim for asylum contrary to the express wishes of a parent. We believe, in keeping with the United States’ obligation of nonrefoulement under the 1967 Protocol Relating to the Status of Refugees, certain circumstances require the United States to accept and adjudicate a child’s asylum application, and provide necessary protection, despite the express opposition of the child’s parents.
The Seventh Circuit helped define those circumstances in Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985). . . . The issue here – whether the INS should accept and adjudicate Elian’s asylum application in direct opposition to his surviving parent and legal guardian – does not result in the termination of parental rights. . . . [In this context, however], the INS must keep in mind the potential interference with the father’s parental rights when determining whether to accept and adjudicate Elian’s application for asylum. . . . Here, the father may not have the opportunity, in a meaningful way, to participate in the adjudication of Elian’s asylum application because his residence in Cuba may preclude him from [traveling ] to the United States or because he is unwilling to do so. . . .
[The Memorandum also considers the INS Children’s Guidelines in light of UNHCR recommendations, and rejects the possibility of a Convention Against Torture claim in addition to the asylum claim.]
We do not believe Elian has the capacity to form a subjective fear of persecution on account of a protected ground. Further, there appears to be no objective basis for a valid claim for asylum or protection under the Convention Against Torture. Therefore, we believe that there is no divergence of interest between the father and child with respect to Elian’s asylum application which warrants interference with the father’s parental authority. Elian’s return to Cuba would not violate the United States’ obligations under the 1967 Protocol Relating to the Status of Refugees, the Convention Against Torture, or the Convention on the Rights of the Child. The INS may give effect to the father’s request for the return of his child by not accepting or adjudicating the application for asylum submitted under Elian’s signature.
Commissioner Doris Meissner approved the Cooper memorandum on January 5, 2000. Lazaro Gonzalez filed suit in federal court to compel the INS to consider the asylum application filed by Lazaro Gonzalez on behalf of Elian, but the federal district court dismissed the suit. Gonzalez ex rel. Gonzalez v. Reno, 86 F. Supp.2d 1167, 1194 (S.D. Fla. 2000). The U.S. Court of Appeals affirmed deferring to the policy established in the January 5, 2000, determination. 212 F. 3d 1338 (11th Cir. 2000).
23. In Maria v. McElroy, 68 F. Supp. 2d 206 (E.D.N.Y. 1999), petitioner was a permanent resident convicted of robbery and sentenced to a prison term of two to four years. Because he had received a sentence of less than five years and had no previous convictions, he was not subject to deportation from the United States on the basis of his criminal act at the time he committed it. One month before his conviction but after his arrest, the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted. Section 440(d) of the AEDPA barred relief from removal as to anyone convicted of an aggravated felony. That legislation was followed by the Illegal Immigration Reform and Immigrant Responsibility Act, expanding the definition of aggravated felonies, and making petitioner ineligible for relief from removal. Maria had legally resided in the U.S. since age 10 and both of his parents had become U.S. citizens. The U.S. District Court for the Eastern District of New York held that retroactive deprivation of Mr. Maria’s statutory right to seek relief from deportation would be contrary to both the International Covenant on Civil and Political Rights and customary international law recognizing rights to be free from both arbitrary interference with family life and arbitrary expulsion. This interpretation of section 440(d) was overruled in Restrepo v. McElroy, 369 F.3d 627, 632 (2d Cir. 2004).
24. In Beharry v. Reno, 183 F. Supp. 2d 584 (E.D.N.Y. 2002), the court relied heavily on international human rights law to interpret the Immigration and Naturalization Act (INA). The defendant, an immigrant who came to the United States in 1982, was convicted of robbery in 1996. Id. at 586. Between the time the defendant committed the robbery and was convicted, the Immigration and Nationality Act was changed, resulting in his categorization as an “aggravated felon,” thus prohibiting consideration for waiver of deportation under section 212(h) of the INA in cases where deportation would result in substantial hardship to a citizen spouse or children. Id. at 588–92. Therefore, the Board of Immigration Appeals determined that he was ineligible for a hearing to determine if his deportation would be a substantial hardship on his family. Id. at 587. In the ensuing habeas action, the judge stated that “[w]ere it not for its international implications, a dismissal would arguably be warranted based on a literal reading of the statutes and caselaw.”
In arriving at the opposite conclusion, the court first relied on the International Covenant on Civil and Political Rights (Civil and Political Covenant), stating that “[s]ummary deportation of this long term legal alien without allowing him to present the reasons he should not be deported violates the [Civil and Political Covenant’s] guarantee against arbitrary interference with one’s family, and the provision that an alien shall ‘be allowed to submit the reasons against his expulsion.’” Id. at 604. The court then relied on the Convention on the Rights of the Child as evidence of customary international law requiring the best interests of the child to be considered wherever possible. Id. Construing the INA to conform with these principles of international law, the court held that waivers under section 212(h) “are available for aliens . . . who meet its [requirements] if these aliens have been convicted of an ‘aggravated felony’ as defined after they committed their crime, but which was not so categorized when they committed the crime.” Id. at 605.
Included in the court’s opinion was language articulating policy reasons for honoring international human rights obligations:
The United States cannot expect to reap the benefits of internationally recognized human rights—in the form of greater worldwide stability and respect for people—without being willing to adhere to them itself. As a moral leader of the world, the United States has obligated itself not to disregard rights uniformly recognized by other nations. Thus, United States courts act appropriately when they construe statutory programs in accordance with international law; they avoid a construction which, if given its literal application, would threaten the interests of the United States by placing the Nation in violation of international standards or embarrassing the political branches in their conduct of foreign relations.
Id. at 601 (internal quotations omitted). It is important to note that this decision was reversed on appeal for lack of subject matter jurisdiction, and with the caveat that, “[n]othing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court’s holding that interpretation of the INA in this case is influenced or controlled by international law.” Beharry v. Reno, 329 F.3d 51, 63 (2d Cir. 2003). Indeed, a later decision in the court of appeals relied on the plain meaning of the INA to come to the opposite conclusion of the district court in Beharry, and indicated that because Congress’ intent was clear, there was no need to determine whether and/or how international law may be used to construe ambiguous statutes. Guaylupo-Moya v. Gonzales, 423 F.3d 121, 136 (2d Cir. 2005).
25. In Mulanga v. Ashcroft, 349 F.3d 123, 135 (3d Cir. 2003) the court, relying on the United Nations Convention Relating to the Status of Refugees stated, “asylum and withholding of removal cases are different form other types of cases because, while the burden of proof is borne by the applicant, the [Immigration Judge] and the [Immigration and Naturalization Service] have a responsibility to make sure that qualified applicants are provided refuge in accordance with the obligations imposed by international law.” The court went on to hold that the Immigration Judge had erred by not giving the petitioner asylum-seeker, the “opportunity to provide corroborating documentation of her husband’s political affiliation . . . .”
26. In Jogi v. Voges, 425 F.3d 367, 369–70 (7th Cir. 2005), the plaintiff, an Indian citizen who had been convicted of a crime and served six years in prison before being deported, sued seeking damages because he was never advised of his right under the Vienna Convention to contact the Indian consulate for assistance. The court relied on decisions in the International Court of Justice (ICJ) that had “definitively announced that Article 36 [of the Vienna Convention] gives rise to individually enforceable rights.” Id. at 383–84. The court stated that although it was of the opinion that the United States was bound by certain of the ICJ’s rulings, that because such an opinion is controversial and the Supreme Court has yet to speak on the matter, the rulings by the ICJ were to be given “respectful consideration” and were used to support the interpretation the court had already reached. Id.
27. In Kim Ho Ma v. Reno, 208 F.3d 815, 830 (9th Cir. 2000), the U.S. Court of Appeals for the Ninth Circuit considered whether the INS could detain indefinitely an alien who had been ordered to leave the U.S., but who could not be returned to his country of origin. In the absence of a repatriation agreement between the U.S. and Cambodia, the Cambodian Government had refused to accept Ma and hundreds of other Cambodians that the U.S. sought to remove. The court interpreted the statute at issue, 8 U.S.C. § 1231(a)(6), to include a reasonable time limitation on detention and noted that to construe the statute otherwise might violate international law, in light of the “clear international prohibition” against prolonged and arbitrary detention. As evidence of this prohibition the court cited Article 9 of the International Covenant on Civil and Political Rights. In October 2000, the U.S. Supreme Court granted a writ of certiorari to hear the case. Reno v. Kim Ho Ma, 531 U.S. 924 (2000).
The Supreme Court consolidated the Ma case with Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999). In Zadvydas, a stateless person with an extensive criminal history challenged his indefinite detention by the INS as a form of arbitrary detention prohibited under international law. Rejecting the description of Zadvydas’s continued detention as “arbitrary,” the U.S. Court of Appeals for the Fifth Circuit held that the INS could detain Zadvydas as long as good faith efforts to effectuate deportation continued and reasonable parole and periodic review procedures were in place.
In Zadvydas v. Davis, 533 U.S. 678 (2001), amici curiae presented the Court with a full exposition of international law barring arbitrary indeterminate detentions without periodic review. See Brief for Human Rights Watch et al. as Amici Curiae Supporting Respondent, Zadvydas v. Davis, 533 U.S. 678 (2001) (No. 00-38); Brief for Lawyers Comm. for Human Rights as Amicus Curiae Supporting Respondent, Zadvydas v. Davis, 533 U.S. 678 (2001) (No. 00-38). The Court made no reference to international law, but instead based its holding on the Due Process Clause of the Fifth Amendment, which it interpreted in way that was consistent with the principles of international law. Zadvydas, 533 U.S. at 690. The Court held that once there is no significant likelihood of removal in the reasonably foreseeable future, there exists a presumption that the detained individual must be released after six months. Id. at 701.
Right to be Free From Racial Discrimination
28. In Milliken v. Bradley, 418 U.S. 717 (1974), the Supreme Court found that a school district that had not intentionally participated in the segregation of schools could not be required to participate in integration remedies. Milliken held that in order to find racial discrimination unconstitutional, a court must first determine that the discrimination is intentional. This high standard ignores the socio-historical context which brought about and perpetuates racially segregated schools. In the wake of Milliken, it has been nearly impossible to prove that school segregation is brought about as a result of discriminatory intent.
The International Convention for the Elimination of All Forms of Racial Discrimination,[149] which the United States ratified in 1994, may provide a means to challenge racial segregation in public schools without proving discriminatory intent. The Convention defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”[150] Article 2 of the Convention requires states to “take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists. . . .”[151]
U.S. ratification of the Convention was subject to the reservation that the provisions are not self-executing. An additional reservation stated:
[T]he United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall, as necessary, take appropriate measures to ensure the fulfilment of this Convention.[152]
The Convention established the Committee on the Elimination of Racial Discrimination (CERD) to monitor implementation of the Convention. In L.R. v. Slovakia,[153] CERD held that State parties are responsible for actions committed within their jurisdiction that have discriminatory effects, although not necessarily committed with discriminatory intent. CERD ruled that Slovakia had violated Article 2 of the Convention by failing to “ensure that all public authorities and public institutions, national and local, shall act in conformity with th[e] obligation” to engage in no act or practice of racial discrimination and by failing to “nullify any laws or regulations which have the effect of creating or perpetuating racial discrimination.” In this case, a municipal council endorsed a petition that, although making no reference to a racial group, had the effect of canceling a project to build low-cost but adequate housing for local Roma. Although the municipal council’s actions were not committed with explicit intent to discriminate, the Committee recalled that:
The definition of racial discrimination in article 1 expressly extends beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect, that is, if they amount to indirect discrimination. In assessing such indirect discrimination, the Committee must take full account of the particular context and circumstances . . . as by definition indirect discrimination can only be demonstrated circumstantially.[154]
The Human Rights Committee, in its concluding observations regarding reports submitted by the United States under Article 40 of the Civil and Political Covenant expressed its concern over the continued presence of de facto segregation in public schools.[155] The Committee noted:
reports of de facto racial segregation in public schools, reportedly caused by discrepancies between the racial and ethnic composition of large urban districts and their surrounding suburbs, and the manner in which schools districts are created, funded and regulated. The Committee is concerned that the State party, despite measures adopted, has not succeeded in eliminating racial discrimination such as regarding the wide disparities in the quality of education across school districts in metropolitan areas, to the detriment of minority students. It further notes with concern the State party’s position that federal government authorities cannot act under law absent an indication of discriminatory intent of state or local authorities. (articles 2 and 26 [of the Civil and Political Covenant])
The Committee reminds the State party of its obligation under articles 2 and 26 of the Covenant to respect and ensure that all persons are guaranteed effective
protection against practices that have either the purpose or the effect of discrimination on a racial basis. The State party should conduct in-depth investigations into the de facto segregation described above, and take remedial steps, in consultation with the affected communities.[156]
29. In Sherman v. Kasotakis, 314 F. Supp. 2d 843, 873 (N.D. Iowa 2004), the court relied on the International Convention on the Elimination of All Forms of Racial Discrimination in upholding an award for punitive damages in a case involving racial discrimination in a public accommodation. The court specifically stated that, “[t]here can be no question of the importance of our society’s interest in combating discrimination . . . . Freedom from discrimination on the basis of race or ethnicity is a fundamental human right recognized in international instruments . . . and the intentional deprivation of that freedom is highly reprehensible conduct.”
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( © 2006 David Weissbrodt and Fionnuala Ni Aoláin.
[1] See, e.g., Bob Herbert, Editorial, It’s Called Torture, N.Y. Times, Feb. 28, 2005, at A19.
[2] See Jane Mayer, Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program, New Yorker, Feb. 14, 2005, at 106; Dana Priest & Barton Gellman, U.S. Decries Abuse But Defends Interrogations; ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, Wash. Post, Dec. 26, 2002, at A1.
[3] See, e.g., Craig Whitlock, Europeans Investigate CIA Role in Abductions; Suspects Possibly Taken to Nations that Torture, Wash. Post, Mar. 13, 2005, at A1.
[4] See Comm. on Legal Affairs & Human Rights, Alleged Secret Detentions in Council of Europe Member States, AS/Jur (2006) 03 rev (Jan. 22, 2006); Rajiv Chandrasekaran & Peter Finn, U.S. Behind Secret Transfer of Terror Suspects, Wash. Post, Mar. 11, 2002, at A1; Douglas Jehl & David Johnston, Rule Change Lets CIA Freely Send Suspects Abroad, N.Y. Times, Mar. 6, 2005, at 1.
[5] Death Penalty Information Center, Facts about the Death Penalty 1 (2006), .
[6] 28 U.S.C. § 3591 (2006) (“[N]o person may be sentenced to death who was less than 18 years of age at the time of the offense.”).
[7] Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
[8] Id. at 2761-62.
[9] Hamdan, 126 S. Ct. at 2786 (quoting Ex parte Quirin, 317 U.S. 1, 28 (1942)).
[10] Id. at 2793.
[11] Id. at 2795 (quoting Geneva Convention Relative to the Treatment of Prisoners of War art. 3, 75 U.N.T.S. 135, entered into force Oct. 21, 1950).
[12] Military Commissions Act of 2006, S.3930, 109th Cong. (2d Sess. 2006).
[13] S.3930, § 3.
[14] S.3930, § 5.
[15] S.3930, § 8.
[16] Countries that have a self-execution doctrine include Argentina, Austria, Belgium, Cyprus, Egypt, France, Germany, Greece, Italy, Japan, Luxembourg, Malta, Mexico, the Netherlands, Spain, Switzerland, and Turkey. Richard B. Lillich, Invoking International Human Rights Law in Domestic Courts, 54 U. Cin. L. Rev. 367, 373 n. 31 (1985).
[17] Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 164 (D.D.C. 2004), rev’d, 126 S. Ct. 2749 (2006).
[18] Id. at 164–65.
[19] Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2845 (2006) (“[P]etitioner may seek judicial enforcement of the provisions of the Geneva Conventions because ‘they are . . . part of the law of war.’ (quoting Hamdan, 126 S. Ct. at 2794)).
[20] International Covenant on Civil and Political Rights: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong. (1991)
[21] Id.
[22] Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980, art. 19.
[23] U.S. Const., Art. I, §8, cl. 10.
[24] Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793) (“[B]y taking a place among the nations of the earth, [the U.S. has] become amenable to the laws of nations.”).
[25] Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 68, 75 U.N.T.S. 287, entered into force Oct. 21, 1950.
[26] International Covenant on Civil and Political Rights art. 6, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.
[27] American Convention on Human Rights art. 4, O.A.S. Treat Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).
[28] See David Weissbrodt, Execution of Juvenile Offenders by the United States Violates International Human Rights Law, 3 Am. J. Int’l. L. 339 (1988).
[29] See Holning Lau, Comment, Rethinking the Persistent Objector Doctrine in International Human Rights Law, 6 Chi. J. Int’l L. 495, 498 (2005).
[30] Editorial, Attacking a Free Judiciary, N.Y. Times, Apr. 5, 2005.
[31] H.R. Res. 97, 109th Cong. (1st Sess. 2005).
[32] Id.
[33] See L. Paul Bremer, Coalition Provisional Authority Order Number 16, Temporary Control of Iraqi Borders, Ports and Airports, sec. 7, para. 1(f), entered into force June 27, 2003, available at .
[34] Id. sec. 13, para. 1(g); id. sec. 14.
[35] M. Cherif Bassiouni, International Extradition: United States Law and Practice 250 (4th ed. 2002).
[36] Alvarez-Machain, 504 U.S. at 669–70.
[37] Geneva Convention Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950 [hereinafter Third Geneva Convention or Geneva POW Convention].
[38] Geneva Convention Relative to the Protection of Civilians in Time of War, 75 U.N.T.S. 287, entered into force Oct. 21, 1950 [hereinafter Fourth Geneva Convention or Geneva Civilian Convention].
[39] For an example of application of a similar framework, see Marco Sassòli, Use and Abuse of the Laws of War in the “War on Terrorism,” 22 Law & Ineq. 195 (2004).
[40] Int’l Comm. of the Red Cross, Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in the Time of War 60 (Jean S. Pictet ed., 1958) [hereinafter Pictet, Civilian Commentary].
[41] See John Yoo & Robert J. Delahunty, Draft Memorandum for William J. Haynes II, Application of Treaties and Laws to al Qaeda and Taliban Detainees, Jan. 9, 2002, reprinted in The Torture Papers: The Road to Abu Ghraib 48-49 (Karen J. Greenberg & Joshua L. Dratel eds., 2005).
[42] See id. at 53.
[43] See id. at 54–62.
[44] Louis Henkin, The Invasion of Panama Under International Law: A Gross Violation, 29 Colum. J. Transnat’l L. 293, 297 (1991) (nothing that U.S. officials have justified the invasion of Panama on the grounds that the Noriega government was illegitimate).
[45] See Senior Military Official (unnamed), Defense Department Background Briefing, May 14, 2004, .
[46] Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 6, 75 U.N.T.S. 287, entered into force Oct. 21, 1950 [hereinafter Geneva Civilian Convention or Fourth Geneva Convention].
[47] As of September 17, 2006, there have been 2,680 U.S. military casualties in Iraq, most of which have occurred since President Bush declared the end of major combat operations. Michael Ewens, Casualties in Iraq, (last visited Sept. 17, 2006).
[48] See Pictet, Civilian Commentary, supra note 43, at 47.
[49] See id. at 60.
[50] Geneva Civilian Convention, supra note 49, art. 6.
[51] Yoo & Delahunty, supra note 44, at 49–50.
[52] George W. Bush, Memorandum for the Vice President et al., Humane Treatment of al Qaeda and Taliban Detainees, Feb. 7, 2002, reprinted in The Torture Papers 134, supra note 44.
[53] “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Geneva POW Convention, supra note 40, art. 4(A)(3).
[54] Geneva POW Convention art. 130.
[55] Geneva Civilian Convention, art. 49, paras. 1, 2, 6.
[56] Pictet, Civilian Commentary, supra note 43, at 599.
[57] Id. at 38.
[58] Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795 (2006) (quoting Hamdan v. Rumsfeld, 415 F.3d 33, 41 (D.C. Cir. 2005)).
[59] Id.
[60] Id. at 2796 (quoting Third Geneva Convention art. 2).
[61] Id.
[62] Id.
[63] G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter Civil and Political Covenant or Covenant].
[64] See Civil and Political Covenant, supra note 29 art. 2(1) (emphasis added).
[65] See United Nations, Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), ¶ 10.
[66] Working Group on Arbitrary Detention, Opinion No. 29/2006, para. 22 (Sept. 1, 2006).
[67] Id. at para. 21.
[68] Id. at para. 3.
[69] G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.
[70] G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992).
[71] Convention for the Protection of All Persons from Enforced Disappearance, UN Doc. E/CN.4/2005/WG.22/WP.1/REV.4 (Sept. 23, 2005).
[72] Convention for the Protection of All Persons from Enforced Disappearance, Human Rights Council, Report to the General Assembly on the First Session of the Human Rights Council, at 32, U.N. Doc A/HRC/1/L.10 (2006).
[73] Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005).
[74] 1 Customary International Humanitarian Law: Rules xxxii (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005).
[75] Id. at 306-43.
[76] Id. at 352.
[77] Id. at 379-80.
[78] Id. at 445.
[79] U.N. Doc. 2187 U.N.T.S. 90, entered into force July 1, 2002 [hereinafter Rome Statute].
[80] 542 U.S. 466, 483 (2004); cf. Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, (D.D.C. 2004) (“[T]he law is clear that the scattered references in the habeas statute . . . simply do not add up to a jurisdictional wall against habeas petitions for citizens detained overseas.”).
[81] See Gherebi v. Bush, 374 F.3d 727, 739 (9th Cir. 2004) (amended).
[82] See, e.g., Abu Ali, 350 F. Supp. 2d at 69 (authorizing jurisdictional discovery to determine whether the court could consider the habeas claim of a U.S. citizen held in Saudi Arabia).
[83] See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).
[84] See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 498 (1973).
[85] U.S. Const. art. I, § 9, cl. 2.
[86] Rasul v. Bush, 542 U.S. 466, 478 (2004) (quoting Johnson v. Eisentrager, 339 U.S. 763, 768 n.8 (1950)). The habeas analysis of the Supreme Court in Eisentrager, mentioned supra, was rooted not in the habeas statute, but in the fundamental constitutional right to habeas corpus.
[87] Military Commissions Act of 2006, S.3930, 109th Cong. § 7 (2d Sess. 2006).
[88] Hamdi v, Rumsfeld, 542 U.S. 507, 562 (2004) (Scalia, J., dissenting).
[89] United States v. Falcone, 960 F.2d 988, 990 (11th Cir. 1992).
[90] See Bruce Zagaris, U.S. Extraordinary Renditions Subject to Foreign and U.S. Investigations and Oversight, 21 Int’l Enforcement L. Rep. 188 (2005).
[91] Talk of the Nation: Policy of Extraordinary Rendition (National Public Radio broadcast, Apr. 7, 2005) (Michael Scheuer) [hereinafter Scheuer, Talk of the Nation].
[92] Id.
[93] See Jack Goldsmith, Draft Memorandum, Permissibility of Relocating Certain ‘Protected Persons’ from Occupied Iraq, Mar. 19, 2004, reprinted in The Torture Papers: The Road to Abu Ghraib 367, 368 (Karen J. Greenberg & Joshua L. Dratel eds. 2005); Helen Thomas, ‘Ghost Detainees’ Should Haunt CIA, Seattle Post-Intelligencer, May 5, 2005, at B6.
[94] See Danielle Knight, Outsourcing a Real Nasty Job, U.S. News & World Rep., May 23, 2005, at 34; R. Jeffrey Smith, Gonzales Defends Transfer of Detainees, Wash. Post, Mar. 8, 2005, at A3.
[95] Priest & Gellman, supra note 5.
[96] See Chandrasekaran & Finn, supra note 7.
[97] Id.
[98] See Jehl & Johnston, supra note 7. (“The transfers were portrayed as an alternative to what American officials have said is the costly, manpower-intensive process of housing them in the United States or in American-run facilities in other countries.”).
[99] See, e.g., Rogers v. Richmond, 365 U.S. 564, 540–41 (1961). But see United States v. Abu Ali, 396 F. Supp. 2d 703 (E.D. Va. 2005) (rejecting defendant’s motion to suppress incriminating statements produced while the defendant was in Saudi custody and allegedly ill-treated).
[100] See Scheuer, Talk of the Nation, supra note 94; Scott Shane, Detainee’s Suit Gains Support from Jet’s Log, N.Y. Times, Mar. 30, 2005, at A1.
[101] Goldsmith, supra note 96.
[102] [footnote by Goldsmith] . . . [A]lthough we have previously indicated that only those who “find themselves . . . in the hands of a Party to the conflict or Occupying Power” in “occupied territory” or the “territory of a party to the conflict” receive the benefits of “protected person” status, this does not mean that a “protected person” who is captured in occupied territory and then temporarily relocated by the occupying power to a different location thereby forfeits the benefits of “protected person” status. On the contrary, we believe he would ordinarily retain these benefits.
[103] Geneva Civilian Convention, supra note 28, art. 4.
[104] Pictet, Civilian Commentary, supra note 43, at 48.
[105] Geneva Civilian Convention, supra note 106, art. 45.
[106] Id.
[107] Pictet, Civilian Commentary, supra note 43, at 266.
[108] Id.
[109] Id. at 283.
[110] Id. at 298.
[111] Pictet appears to be referencing paragraph three.
[112] Pictet, Civilian Commentary, supra note43, at 279 (emphasis added).
[113] Law on Foreigners Residence No. 118 (1978), entered into force Nov. 5, 1978 [hereinafter Foreign Residence Law], available at .
[114] See id., art. 24.
[115] See id. arts. 3, 6, 8, 11, 24.
[116] Resolution No. 360 of 1991, entered into force Oct. 30, 1991, para. 2, available at .
[117] Foreign Residence Law, supra note 116, art. 2, para. 1 (“Arab citizens shall be excluded from the provisions of this Law with observance of the provisions of para (a) of Article 8 thereof.”).
[118] See Vivian Grosswald Curran, Competing Frameworks for Assessing Contemporary Holocaust-Era Claims, (symposium), 25 Fordham Int’l L.J. 107, n.84 (2001).
[119] Id. at n.85 (citing the November 25, 1941 decree called the “elfte Verordnung zum reichsbürgergesetz”).
[120] See Hannah Arendt, Eichmann in Jerusalem 38–39 (1963).
[121] See id. at 60–61.
[122] Id. at 69, 73–74, 141.
[123] See id. at 143–44 (“According to the directives of the Wannsee Conference . . . the Final Solution was to be applied to all European Jews, . . . and such things as nationality . . . were not mentioned. But since Germany . . . depended upon local good will and cooperation everywhere, these little formalities could not be sneezed at.”).
[124] See Michael R. Marrus & Robert O. Paxton, Vichy France and the Jews at xv, 423–28 (1995 Stanford Univ. Press) (1981).
[125] See Arendt, supra note 123, at 150–53, 170–71, 176–82.
[126] Hannah Arendt, The Origins of Totalitarianism 280 (2d enlarged ed. 1958).
[127] See Attorney-General of Israel v. Eichmann, 45 Pesakim Mehoziim 3, para. 63 (D.C. Jerusalem 1961) (Isr.), translated in 36 Int’l L. Rep. 5, 89 (1968):
This is like an automated factory . . . . At the one end you put in a Jew . . . and he goes through the whole building from counter to counter, from office to office, and comes out the other end without any money, without any rights, with only a passport in which it says: ‘You must leave the country within a fortnight: otherwise—you will go to a concentration camp.’
(Testimony of a witness who had visited the Vienna Emigration Center).
[128] Pictet, Civilian Commentary, supra note 107, at 278–79.
[129] Foreign Affairs Reform and Restructuring Act of 1998, § 2242(d).
[130] 75 U.S. 85, 102 (1869).
[131] Wang, 320 F.3d at 141.
[132] See Second Periodic Report of the United States of America to the Committee Against Torture, Submitted to the Committee Against Torture May 6, 2005, at , para. 90.
[133] See U.S. Reservations, Declarations and Understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 136 Cong. Rec. S17486-01 (1990).
[134] See Convention Against Torture art. 5, supra note 72.
[135] Id.
[136] Id. art. 3.
[137] Communication No. 233/203, May 20, 2005, U.N. Doc. CAT/C/34/D/233/2003, [hereinafter Agiza].
[138] See id. at 4, paras. 2.2–2.3
[139] Id. at 5, para. 2.5
[140] See Craig Whitlock, A Secret Deportation of Terror Suspects; 2 Men Reportedly Tortured in Egypt, Wash. Post, July 25, 2004, at A1.
[141] Agiza at 31–32, para. 12.29.
[142] Id. at 35, para. 13.4.
[143] See Craig Whitlock, New Swedish Documents Illuminate CIA Action: Probe Finds ‘Rendition’ of Terror Suspects Illegal, Wash. Post, May 21, 2005, at A1.
[144] Agiza at 34, para 13.4.
[145] Id. at 35, para. 13.4.
[146] Id. at 37, para. 14.
[147] Id. at 36, para. 13.8.
[148] Judge Linde authored the majority opinion in Sterling v. Cupp, 290 Or. 611, 625 P.2d 123 (1981) (construing the Oregon Constitution’s guarantee against “unnecessary rigor” in light of the International Bill of Human Rights and other international instruments to prohibit full patdowns of male prisoners by female guards).
[149] International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14), U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969, available at .
[150] Id. art. 47 (emphasis added).
[151] Id. art. 2 (emphasis added).
[152] 140 Cong. Rec. S7634 (1994).
[153] L. R. et al. v. Slovakia, Communication No. 31/2003, U.N. Doc. CERD/C/66/D/31/2003 (2005). Available at .
[154] Id. §10.4.
[155] Concluding Observations of the Human Rights Committee on the Second and Third U.S. Reports to the Committee (2006), available at .
[156] Id. ¶ 23.
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