The Unhelpful Committee Against Torture

by Julian Ku

The U.S. government often exhibits a silly kneejerk hostility to international institutions. But sometimes, its suspicions and skepticism is totally justified. The latest example of unhelpful U.N. overreach: the U.N. Committee Against Torture’s recommendation that the U.S. stop detaining individuals at Guantanamo Bay (which Roger noted below).

Here is the Committee’s key conclusion:

22. The Committee, noting that detaining persons indefinitely without charge, constitutes per se a violation of the Convention, is concerned that detainees are held for protracted periods at Guantánamo Bay, without sufficient legal safeguards and without judicial assessment of the justification for their detention. (articles 2, 3 and 16)

The State party should cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured, in order to comply with its obligations under the Convention.

Thus, even if, as the White House maintains, the U.S. is providing detainees with absolutely humane treatment and does not engage in any coercive interrogations at all, the U.S. is “per se” in violation of the Convention Against Torture.

In other words, a nation engaged in a military conflict violates the Convention Against Torture if it ever detains an individual without providing “a judicial assessment of the justification for their detention,” no matter whether that individual is mistreated in any way. It is not obvious that even complying with the Geneva Conventions would satisfy this committee.

I should also note that the U.S. spent a lot of time arguing that the reports of torture at Guantanamo Bay and detentions elsewhere are exaggerated or plain false. The Committee did not even acknowledge these factual claims, preferring to simply accept any allegations as more or less true. The Committee does not bother to note that it has turned down invitations to visit Guantanamo Bay to engage in fact-finding of its own.

In a final display of its complete lack of self-awareness, the Committee tartly advises the U.S. to “reconsider its express intention not to become party to the Rome Statute of the International Criminal Court.” In fact, the Committee’s somewhat ridiculous performance here only provides more fodder for critics of U.S. participation in the ICC or any international institution. The chances of the U.S. joining the ICC – which was never high –has just been reduced still further.

6 Responses

  1. I think with all of these “Unhelpful” posts recently (no pun intended), you have an ongoing series in the making Julian!

    I hope to one day achieve the status as “The Unhelpful Blog Commenter.”

  2. I’m not saying I disagree, but what would be considered “helpful”? Guantanamo has set a terrible precedent, but I don’t think we’ll grasp its full affect for years to come.

  3. Actually, I think the report was quite helpful – it made the front page of the paper here in Toledo including the sophistry that was John Bellinger’s objection to the report (a good man in a bad spot). It is perfectly reasonable that it is within the Committee’s discretion to conclude that a particular detention facility as structured by a state party violates the Convention. Guantanamo has been set up in the manner it has been set up with obviously a great deal of reflection and cost put into designing it. The problem is that the world simply does not believe the U.S. assertions that “All is OK” or “Only a few bad apples.” or “we have improved.” ad nauseum, notwithstanding the efforts of John Bellinger and other apologists to try to distract attention or minimize the significance of what the United States has decided to do. Of course, in an armed conflict one can detain one’s enemies, but it seems perfectly reasonable for the Committee to tell a country to “please close that black hole” notwithstanding the protestations of that country that it is really a country club.


    Ben Davis

    Associate Professor of Law

    University of Toledo College of Law

  4. One of the particular difficulties for persons to grasp is that the United States government leadership (Executive, Legislative and Judiciary) might actually be lying or extremely disingenuous to protect themselves from the criminal consequences of what they are willing to allow to happen. Another oparticular difficulty for persons to grasp, is that a Committee of the United Nations would have the temerity/courage to call the United States on a vast array of troubling aspects of how it operates both domestically and internationally, in the war on terror, in Hurrican Katrina, in supermax prisons, in the intelligence communities. It is the extensive critique of these aspects of our national security state that is wonderful about the report and quite refreshing. The report is a deconstruction of the rationalizations on jurisdiction etc that have been posited by intelligent but misguided persons – particlulary enabling lawyers/law professors – to try to assert there are holes that are big enough for policy evil to be done. Of course, all of this will come out some day. I truly hope that each of those apologists is forced to face a tribunal that is willing to not accept a “state secrets” defense (which assertions could also be fabrications for the purpose of manipulating the court – that manipulation of course classified as a state secret too). Let them face criminal prosecution in the United States for the violations of the types of rules that are described by Mary Ellen O’Connell in her ASIL Insight that came out yesterday at


    Ben Davis

    Associate Professor of Law

    University of Toledo College of Law

  5. “The Committee’s somewhat ridiculous performace” – oh for pity’s sake. Indefinite detention is a form of inhumane treatment even if the detainee is bathed daily in rose water and fed with foie gras, and such detention therefore falls under the CAT and the Committee’s mandate. The “war” on terror is not an armed conflict in any sense recognized under international law (do give me any example from state practice to the contrary), and any detainees picked up as “combatants” in this purported type of conflict must either be charged or released. Only those captured on the battlefields of Iraq or Afghanistan may be detained as combatants, until they are either released upon the closure of hostilites or tried for violations of the laws of armed conflict. In any event, they must be treated humanely, not simply as a matter of policy, but as a matter of law.

    As to fact-finding – is the Committee really supposed to believe the US Government’s assertions, and take them at face value, after Abu Ghraib and similar scandals? As to the Committee doing the fact-finding itself: I do not recall that they were ever invited to visit Guantanamo. It was a UN group of experts, lead the by Special Rapporteur on torture, the distinguished Professor Manfred Nowak, who refused this invitation, not the CAT, as they would not have been given free and unsupervised access to the prisoners by the US authorities.

  6. Marko Milanovic, I couldn’t agree more. The definition of torture, and a fortiori that of inhuman and degrading treatment to which the competence of the Committee extends (see Article 16 of the Convention against Torture), is by no means limited to the classical situations known already to the Spanish Inquisition. As you indicate, disregard for human dignity takes many forms, sad as it is.

    In fact, the European Court of Human Rights has accepted that indefinite detention, in the much less objectionable form of a sentence of life without parole imposed after an orderly criminal trial, may amount to inhuman treatment: see Einhorn v. France (sorry, I don’t have a link handy).

    The Court has further held that the imposition of a sentence of death after an unfair trial may likewise amount to inhuman treatment: see Öcalan v. Turkey, para. 169. This may be worth remembering with regard to the Military Commissions, for fairly obvious reasons…

    As for the reference to the ICC, this may also have a very serious link to the Convention, and thus to the report of the Committee. The Convention establishes a duty to prosecute acts of torture, and if US courts may be less than inclined to concern themselves with Guantanamo Bay in constitutional law (we’ll see), they might very well be even less eager to conform to their duties (under international law, the Convention against Torture having been declared as non-self-executing by the US Senate) concerning criminal prosecutions. In that case, the ICC might be available as a way for the US to ascertain that these duties are fulfilled somewhere. This may be speculative, but let’s not forget that the report by the Committe did not arise from an individual complaint, and may therefore properly be quite general in its content.

    In sum, then, I agree entirely that the Committee was certainly not entirely unhelpful, much less ultra vires. Of course, it does remain to be seen whether the US will comply in whole or even in part, but it would surely be absurd for the Committee not to express a view for the simple reason that the state party will be inclined to disregard it. Now that would have been ridiculous.

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