21 Jan Sands and Lithwick on the Prosecution of Torturers
Philippe Sands and Dahlia Lithwick have kindly responded to my post about CAT and the prosecution of torture suspects. Here is their response:
We don’t believe we are in disagreement on the approach to the obligation under CAT, under Articles 7(1) and (2). The obligation is to “submit the case to its competent authorities for the purpose of prosecution”. What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards (“authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State”) and the facts of the case, including the prospects for a successful prosecution, that proceeding to actual prosecution is not justified.
Weeks of hearings on Pinochet in the House of Lords and other English courts, in which Arts 5 and 7 were parsed to death, confirm that this is the proper approach to Article 7.
What does this mean for the US right now? In the face of rather compelling evidence that torture occurred — not least the statement last week by Susan Crawford — it appears that the matter should be taken up by a prosecutor. The fact that a US prosecutor might decide upon investigation not to proceed would not, however, prevent a prosecutor in another (foreign) State which is entitled to exercise jurisdiction, from doing so. And if that prosecutor made a request to the US for extradition, on its face the Convention would require such a request to be acceded to, in the context of the relevant US rules (including on extradition of nationals). This is, of course, in essence what happened in the Pinochet case in the UK; the UK prosecutorial authorities decided, in the exercise of their discretion, not to prosecute (as some were calling for) but to proceed to support the application to extradition to Spain.
Sands and Lithwick’s final point, about extradition, is an important one. The US cannot be allowed to frustrate the object and purpose of CAT — to ensure that those who torture are properly punished — by half-heartedly investigating interrogators and Bush administration officials, deciding on grounds of “insufficient evidence” not to prosecute, and then refusing to extradite the suspects to a country that takes its obligations under CAT more seriously.
P.S. My apologies to Phliippe and Dahlia for misinterpreting their position.