Sands and Lithwick on the Prosecution of Torturers

by Kevin Jon Heller

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.

http://opiniojuris.org/2009/01/21/sands-and-lithwick-on-the-prosecution-of-torturers/

9 Responses

  1. Thus, is it fair to say that the prospect of extradition serves as an effective constraint on (i.e., inhibits the unfettered exercise of) prosecutorial discretion?

  2. I’m not sure how you get your conclusion there.

    As far as I can tell from the Treaty, if the US refers it to prosecutors, and they don’t prosecute due to lack of evidence, there’s no obligation to extradite them anywhere.

  3. Assuming this was a reply to me, I never said there was an obligation of any sort were the US prosecutors refuse to take up the case. What my point about a constraint on prosecutorial discretion assumes is that in a case such as this, that is, wherein the prima facie evidence appears compelling but the prosecutors, for whatever reason, are inclined to decide on grounds of (putatively) insufficient evidence not to prosecute, they have to keep in mind the fact that they cannot “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).” It is knowledge of that possibility that, it seems to me at any rate, serves as a (i.e., one) very real constraint on unfettered prosecutorial discretion of the sort that should concern all of us committed to the principles and practice of Liberal criminal justice. With Angela Davis in Arbitrary Justice: The Power of the American Prosecutor (2007), I believe that “It is difficult to imagine a fair and workable system that does not include some level of measured discretion in the prosecutorial process.” That said, “measured discretion” demands meaningful constraints (or ‘checks and balances’) of some sort, and in the instant case the very real prospect of another state requesting extradition would serve as one such constraint on prosecutorial discretion. And that is a good thing (and thus thank goodness for international criminal law).

  4. Ok, I understand your position but not precisely how you’re reaching it from the text.  The treaty specifically lays out what a country has to do should you chose not to extradite (should they have jurisdiction,) which is refer it to a prosecutor.  Meaning, if it has been referred to a US prosecutor, regardless of the outcome, there will not be an extradition. 

    It seems the US has discretion on whether to extradite under Article 8, Section 2, which would presumably preclude extraditing anyone due to “insufficient evidence” should the prosecutor they referred it to reach that conclusion.

  5. Wait, my comment was to KJH, not Mr. O’Donnell, sorry.

    I would answer to Mr. O’Donnell’s question that, no, it does not, because a country will almost always refuse to extradite based on lack of evidence, if that’s really why the prosecutor refused to prosecute.

    Now, if it was more “lack of will” than “lack of evidence” I imagine you could succeed at extradition.

  6. M. Gross,

    So, Sands and Lithwick are mistaken in their claim 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)?


    Re: 
    “a country will almost always refuse to extradite based on lack of evidence, if that’s really why the prosecutor refused to prosecute.”
    and “more ‘lack of will’ than ‘lack of evidence’”

    And thus in the Pinochet case, the fact 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 is not generally representative of a likely or possible scenario in the future, and in particular in the case of the US?

    I doubt we can get to far into the business of ascertaining motives here: e.g., “lack of will” may be described as “lack of sufficient evidence”–prosecutors will admit to the latter reason but will not offer the former rationale as a public explanation for the decision not to prosecute. Although I suppose you might say that if they acted as the UK did in the case of Pinochet, the decision to support the application of extradition was presumptive evidence of lack of will rather than a determination of insufficient evidence. But what remains important is that the Convention is being adhered to.

  7. I disagree with Lithwick’s conclusion, yes.  Whether they are “wrong” of course will eventually be decided in court, one should imagine.

    I doubt that the US would decline to prosecute, then extradite former members of our government to other countries for trial.  The UK didn’t have the investment in convicting Pinochet other countries did, but still had the interest in seeing justice done.  Thus, they let someone else convict him.  I find it hard to see how the US would lack “investment” in the Bush administration.

  8. What the US might or might not do on this score is an intriguing question, but I think our law professors are as much or more concerned with what they should do or what they are legally obligated to do. This is made clear in Professor Jordan Paust’s piece that appeared in JURIST: “Banning Torture Is Not Enough.” According to Professor Paust,

    What should ultimately follow is presidential execution of treaty-based and customary international legal obligations to either initiate prosecution of or to extradite all persons who are reasonably accused of having authorized, ordered, abetted, or perpetrated war crimes and/or crimes against humanity. For example, Article 146 of the 1949 Geneva Civilian Convention expressly and unavoidably requires that all Parties “search for persons alleged to have committed, or to have ordered to be committed, … grave breaches [of the Convention] and shall bring such persons, regardless of their nationality, before its own courts” for “effective penal sanctions” or, “if it prefers, … hand such persons over for trial to another High Contracting Party.” The obligation is absolute and applies with respect to alleged perpetrators of any status. As a party to the Geneva Conventions, the United States must either initiate prosecution or extradite to another state or, today, render an accused to the International Criminal Court. “Grave breaches” of the Convention include “torture or inhuman treatment” and transfer of a non-prisoner of war from occupied territory. Similarly, Article 7, paragraph 1, of the Convention Against Torture expressly and unavoidably requires that a Party to the treaty “under whose jurisdiction a person alleged to have committed … [for example, torture or “complicity or participation in torture”] is found, shall … if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.” There are no other alternatives.

    As documented in a recent draft law review article on “The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions,” [to be posted soon on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1331159] ultimately President Obama can restore the rule of law, bring an end to seven years of impunity, and restore American honor, integrity, and respect only by adherence to the express and unavoidable constitutional duty of the President of the United States to faithfully execute the laws, including relevant international laws requiring prosecution or extradition of criminal accused.  [emphasis added]

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