Recent Posts

Weekly News Wrap: Monday, January 26, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

  • Top Ugandan rebel commander Dominic Ongwen is due to make his first appearance at the International Criminal Court (ICC) in The Hague today to face war crimes charges.
  • United Nations experts warned that Sudan’s remote western territories could become a breeding ground for radical Islamists as violence in the country’s conflict-torn Darfur region rages at an alarming level.
  • Boko Haram has launched a major offensive in Nigeria’s northeastern city of Maiduguri and the town of Monguno, engaging in fierce battles with the military.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Conservative Prime Minister Tony Abbott has awarded Australia’s highest honor to Prince Philip, husband of Queen Elizabeth, sparking a barrage of criticism across the country on its national day of celebration. The award grated with republicans who want to sever ties with Britain and appoint an Australian president.
  • Australia called on Indonesia on Friday to reconsider its decision to execute two Australians convicted of drug offences, a move that is likely to strain already fragile ties between the two neighbors.
  • The United States has agreed that Australian David Hicks, jailed on terrorism charges for five years at Guantanamo, is innocent, his lawyer said on Friday.

UN/World

  • A new round of U.N. talks between rival Libyan factions will take place in Geneva on Monday, the United Nations said, even as gunmen kidnapped the deputy foreign minister of the recognised government.
  • The World Health Organisation (WHO) has admitted that the Ebola outbreak in West Africa revealed “inadequacies and shortcomings” in how it responds to crises.

Weekly News Wrap: Monday, December 15, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

  • Palestinian officials are to present a draft resolution to the UN Security Council seeking a two-year deadline for Israel to end its occupation, an official has said.
  • The UN Security Council has called for a “swift and transparent investigation” after a Palestinian minister died during a confrontation with Israeli soldiers.

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: December 14, 2014

by Jessica Dorsey

Events

  • The International Humanitarian and Criminal Law Platform of the T.M.C. Asser Instituut and the Kalshoven-Gieskes Forum on International Humanitarian Law of the Grotius Centre for International Legal Studies of Leiden University cordially invite you to attend the launch of the book: ‘Nuclear Weapons Under International Law’  taking place Wednesday, 17 December in The Hague. Please find more information here.

Calls for Papers

  • The McCoubrey Centre for International Law of the University of Hull Law School is hosting on 2 & 3 July 2015 its 2nd conference for research students and early career scholars. The conference’s title is “Making International Custom More Tangible”, and the keynote speech will be given by Sir Michael Wood, the Special Rapporteur of the International Law Commission on the Formation and Evidence of Customary International Law. The principal aims of the McCoubrey Centre Conference are to promote wider debate on the issues being addressed by the ILC, to stimulate research on customary law by younger academics, and to contribute to a wider understanding of the foundations and function of customary international law in the 21st century. All panels will be chaired by leading academics, who will be invited to comment on the papers. Selected papers will appear in a volume edited by the McCoubrey Centre for International Law. Interested participants should provide an abstract of no more than 500 words by 15 February 2015. Abstracts shall be uploaded on the conference’s webpage. Speakers will be informed of acceptance of their papers by 6 March 2015.

Announcements

  • The International Committee of the Red Cross (ICRC) has launched its Online Training Centre, a collection of e-learning modules on international humanitarian law and other areas of the ICRC’s work. These online training courses are available to anyone as self-paced courses, free of charge. For more information, please visit the website here.
  • As we have announced previously, the ICRC also has recently launched the online version of the casebook, How Does Law Protect in WarThis new online reference platform in IHL features:
    • Regular updates with new case studies on contemporary armed conflicts
    • An comprehensive IHL outline composed of 14 different themes
    • More than 350 case studies covering past and contemporary armed conflicts
    • More than 20 model IHL courses and pedagogical resources for IHL lecturers
    • More than 300 terms and notions referenced in the online index “A to Z”
    • Full online navigation between theory and practice through internal links and search engine

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information. 

Do Attacks on ISIS in Syria Justify the “Unwilling or Unable” Test?

by Kevin Jon Heller

Almost three years ago to the day, I critiqued an article by Ashley Deeks that argued the right of self-defence under Art. 51 of the UN Charter extends to situations in which states are “unwilling or unable” to prevent non-state actors from using their territory to launch armed attacks. As I noted in my post, Deeks herself admitted that she had “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom).”

When Deeks wrote her article, ISIS did not yet exist — and the US and other states had not started attacking ISIS in Syria. It is not surprising, therefore, that Deeks is now relying on the international response to ISIS to argue, in the words of a new post at Lawfare, that “the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine.”

There is no question that the US believes the “unwilling or unable” test is consistent with Art. 51. As Jens noted a few months ago, the US officially invoked the test with regard to ISIS and the Khorasan Group in a letter to the Security Council. Moreover, the UK seems to agree with the US: according to Deeks, the UK submitted a similar Art. 51 letter to the Security Council, stating that it supports international efforts to defend Iraq “by striking ISIL sites and military strongholds in Syria” — a position that, in her view,”implicitly adopts the ‘unwilling or unable’ test.”

Deeks does not provide a link to the UK letter, but I have little doubt she is characterizing the UK’s position accurately. I have significant issues, though, with the rest of her post, which argues that three other factors related to the international response to ISIS support the “unwilling or unable” test. Let’s go in order. Here is Deeks’ first argument:

[S]tates such as Jordan, Bahrain, Qatar, and the UAE, which also have undertaken airstrikes in Syria, presumably are relying on the same legal theory as the United States and UK.  (That said, those states have not proffered clear statements about their legal theories.)

There are two problems with this claim. To begin with, even if the four states are relying on “unwilling or unable” to justify their attacks on ISIS in Syria, they have not said so publicly — which means that their actions cannot qualify as opinio juris in support of the test. The publicity requirement is Customary Law 101.

More importantly, though, and pace Deeks, it is actually exceptionally unlikely that these states support the “unwilling or unable” test. All four are members of the Non-Aligned Movement (NAM), which has consistently rejected the test, most notably in response to Turkey’s cross-border attacks on the PKK in Iraq (see Ruys at p. 431):

We strongly condemn the repeated actions of Turkish armed forces violating the territorial integrity of Iraq under the pretext of fighting guerrilla elements hiding inside Iraqi territory. … We also reject the so-called ‘hot pursuit’ measures adopted by Turkey to justify such actions that are abhorrent to international law and to the norms of practice amongst States.

To be sure, Jordan, Bahrain, Qatar, and the UAE have not rejected the “unwilling or unable” test since 9/11 — the statement by NAM above was made in 2000. But there is little reason to believe that their understanding of Art. 51 has fundamentally changed over the past decade. On the contrary, all four are also members of the Arab League, and in 2006 the Arab League formally rejected the “unwilling or unable” test in the context of Israel’s attacks on Hezbollah in Lebanon (see Ruys at p. 453).

Here is Deeks’ second argument:

Iraq vocally has supported strikes within Syria.

This is not surprising, given that ISIS is using Syria as a base for attacks on Iraq. But does Iraq’s support for airstrikes on ISIS in Syria count as opinio juris in favour of the “unwilling or unable” test? I doubt it. After all, not only is Iraq a member of the Arab League, it consistently denounced Turkey’s attacks on PKK bases in its territory between 2007 and 2008 as inconsistent with its sovereignty (see Ruys at p. 461). Iraq’s attitude toward the “unwilling or unable” test thus seems driven exclusively by political opportunism; there is no indication that it considers the test to represent customary international law.

Here is Deeks third argument:

Syria itself has not objected to these intrusions into its territory.

This factor seriously complicates Deeks’ argument. Another word for “not objecting” is “consenting.” And if Syria is consenting to attacks on ISIS in its territory, it is problematic to simply assume — as Deeks does — that all such attacks provide evidence in favour of the “unwilling or unable” test. The US and UK may not want to rely on Syrian consent to justify their attacks. But it seems likely that Jordan, Bahrain, Qatar, and the UAE are relying on Syrian consent rather than Syrian unwillingness or inability to justify their attacks on ISIS in Syria — particularly given their traditional narrow understanding of Art. 51.

Finally, it is important to note what Deeks says immediately after claiming that “[i]In view of these developments, the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine”:

Whether other European states ultimately commit to airstrikes in Syria will be informative; to date, states such as France, Denmark, and Belgium only have provided support to strikes against ISIS within Iraq, not Syria.

This is an important admission, because it means that a member of P-5 and two other important Western states have suggested they are not comfortable with using the “unwilling or unable” test to justify attacks on ISIS in Syria.

So, to recap: the US and UK clearly support the “unwilling or unable” test; Jordan, Bahrain, Qatar, and the UAE are likely basing their willingness to attack ISIS in Syria on Syrian consent; Iraq has a completely opportunistic approach to the “unwilling or unable” test; and France, Denmark, and Belgium seem to reject the test, even if they have not done so explicitly.

And yet we are supposed to believe that the “unwilling or unable” test “is starting to seem less controversial and better settled as doctrine”?

Weekend Roundup: December 6-12, 2014

by Jessica Dorsey

Looking back at the week that was, Opinio Juris bloggers covered a number of news-related issues. Several provided commentary on the release of the US Senate’s Torture Report. Prior to its release, Kevin expressed disbelief at a post by ACLU Director Anthony Romero urging blanket amnesty for those responsible for torture, and as soon as it became available, Jens announced the report’s availability and his first thoughts here, before discussing what we really fight about when we talk about torture here.

Deborah examined the question of prosecution in response to allegations in the report, and Roger posted on the report as a truth and reconciliation commission, akin to his research on the transitional justice process post-apartheid in South Africa. Finally, Julian weighed in analyzing a recent trend that the US public does not necessarily agree with international law’s absolute ban on torture.

In other news, after the ICC dropped the case against Kenya’s Uhuru Kenyatta, Julian posed the provocative question whether this might spell the end for the ICC. Additionally, Kevin flagged the OTP’s decision to suspend the investigation into alleged crimes in Darfur, troubled by the seemingly politically laden relationship between the Court and the UN Security Council.

Julian also called attention to China’s “position paper” released ahead of its December 15th filing deadline in the situation between China and the Philippines before the UNCLOS arbitral tribunal. He also pointed to his more in-depth analysis of why the Philippines arbitration is doomed to fail (spoiler alert: it’s due to a mistake by the Philippines in employing a “lawfare strategy” forcing China before the arbitral tribunal), notwithstanding Vietnam’s support of the Philippines’ position. Finally in sea-worthy news, Julian pointed to the newest (sci-fi) development for the US Navy in the Persian Gulf: the planned deployment of laser cannons.

Rounding out the contributions from our regular bloggers, Duncan paid homage to his mentor, the late Professor Alfred P. Rubin, referring to him as the best professor he has ever had.

We posted Eric Sigmund’s guest contribution, a response to Kevin’s previous questioning of why US courts don’t understand IHL, remarking that the courts’ misunderstanding of IHL is deeper than you’d think.

Finally, I wrapped up the week’s news and listed events and announcements.

Thanks go out to our guest contributor and have a nice weekend!

OTP Suspends Darfur Investigation

by Kevin Jon Heller

This is quite big news, and I hope it doesn’t get lost in the welter of voices discussing the collapse of the Kenyatta prosecution. Here is a snippet from the Washington Post:

The prosecutor for the International Criminal Court told the U.N. Security Council on Friday she is stopping her investigations in Sudan’s chaotic Darfur region for now because no one has been brought to justice in a decade and the council has done little or nothing to help.

Darfur’s situation is deteriorating and the brutality of crimes is increasing, but there have been no discussions with the council for “concrete solutions,” Fatou Bensouda said. She demanded a new approach.

Darfur was the council’s first referral to the ICC, which is seen as a court of last resort for genocide, war crimes and crimes against humanity.

[snip]

“It is becoming increasingly difficult for me to appear before you and purport to be updating you when all I am doing is repeating the same things I have said over and over again,” Bensouda told the council, which has been divided on how to press Sudan for cooperation. This was the 20th time the prosecutor has briefed the council on Darfur.

“Given this council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases,” Bensouda said.

It’s never good news when any OTP investigation falters, but it’s particularly disturbing in the context of the first Security Council referral to the ICC. Unfortunately, as many have noted (Mark Kersten, Dov Jacobs, me), the Security Council has an unfortunate tendency to treat the ICC like a political football — referring a situation to the Court when it needs to appear concerned about mass atrocity, then abandoning it when an attention-challenged international community has moved on to a different situation. Darfur is a perfect example of that troubling dynamic.

There is, however, a silver lining to the OTP’s decision to suspend the Darfur investigation: it indicates that Fatou Bensouda is getting tired of being Charlie Brown to the Security Council’s Lucy. I’m quite certain the Security Council would have preferred the Darfur investigation to continue ad infinitum: as long as the OTP is trying to investigate, the ICC will get the lion’s share of the blame for the failure to get Bashir. Now Bensouda has cleverly shifted the terrain, making it clear that the problem is the Security Council, not the ICC. Whether the Security Council will care is an open question — but at least Bensouda will take some of the heat off the ICC regarding Darfur. The last thing the Court needs now is additional bad publicity…

Game On with New Player? Vietnam Files Statement Against China at UN Arbitral Tribunal

by Julian Ku

The government of Vietnam appears to have filed a statement of its legal views with the UN Convention of the Law of the Sea arbitral tribunal formed to resolve the Philippines-China dispute in the South China Sea.  It is a little unclear exactly what Vietnam has filed.  According to its Ministry of Foreign Affairs website:

In response to the question on Viet Nam’s position regarding the South China Sea Arbitration case, spokesperson of the Ministry of Foreign Affairs of Viet Nam Le Hai Binh affirmed that:
“To protect its legal rights and interests in the East Sea which may be affected in the South China Sea Arbitration case, Viet Nam has expressed its position to the Tribunal regarding this case, and requested the Tribunal to pay due attention to the legal rights and interests of Viet Nam.”/.

According to the South China Morning Post, the Vietnamese submission has three points.

1) It supports the Philippines on the question of the tribunal’s jurisdiction.
2) It asks the tribunal to give due regard to Vietnam’s legal rights and interests
3) It rejects the legality of the Chinese “nine-dash line”.

I think this filing has much more political than legal significance.  As a legal matter, I don’t think there is any procedure in the UNCLOS dispute settlement system for third-party interventions, so I think this is really just like sending a letter to the arbitral tribunal.  It has no legal significance, and the tribunal has no obligation to consider it. But of course, it has the right to do so if it believes it is relevant to the dispute before it.

On the other hand, this is a political victory for the Philippines, since it means that Vietnam has tacitly agreed to join a common front against China.  I remain skeptical (as I wrote yesterday) of the Philippines’ legal strategy, even with this support from Vietnam, because China has the same arguments against Vietnam and it will not likely change course.   The next question: Will Vietnam file its own legal claim and form its own arbitral tribunal? That might push China into a different response, but I would still bet against it.

The Question of Prosecution

by Deborah Pearlstein

The 525-page executive summary of the torture report released this week, and the debate that has followed thus far, is in many respects so dense it is a struggle just to decide where to begin engaging. Having spent years of my life as a human rights lawyer working on precisely these issues – preparing reports on secret detentions, and indeed detainee deaths in U.S. custody, among other things – and having spent plenty of days in shock and horror at what we learned then, I had come to feel almost inured to new revelations. Power drill to the head? We’d seen that earlier. Detainee died of hypothermia having been left mostly naked in his dungeon-like cell? Knew that too. But beyond the important new detail about our treatment of detainees the report offers, it is for me the facts the report reveals about the level of fundamental professional incompetence giving rise to this program, and the extent of the CIA’s efforts to keep information about it from other parts of our own government – including the director of the FBI and two U.S. secretaries of state – that leaves me newly in awe. Among the many telling (and I believe unrefuted) passages of incompetence (p. 11 of the Report): “Numerous CIA officers had serious documented personal and professional problems – including histories of violence and records of abusive treatment of others- that should have called into question their suitability to participate” in the interrogation and detention program. More, the private psychologists CIA hired to develop, operate and assess its interrogation program lacked any “experience as an interrogator, knowledge of Al Qaida, background in counterterrorism, or any relevant cultural or linguistic expertise.” Even as I continue to work through the text of the report, it is clear that it should be required reading for all Americans.

For now, though, I want to begin with one of the questions the report raises that I find much more difficult to assess: whether and how those responsible for the acts of torture described in the report should be held accountable. (more…)

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

by Julian Ku

I don’t have much useful to add to the already voluminous online debate on the legality or morality of the U.S. Senate Intelligence Committee’s report on the CIA’s “enhanced interrogation” or “torture” program.  In this post, I want to focus on an interesting data point coming out of this debate.  As best as I can tell, international law’s position that torture can never be legally justified doesn’t seem to be shared by a majority (or even close to a majority) of the U.S. public.  This doesn’t mean that the CIA program was legal.   But international lawyers need to also consider the fact that U.S. public support for international law’s absolute prohibition of torture has only declined over the past 13 years, despite the much greater awareness and public discussion of these issues, especially by international lawyers.

I don’t think I am wrong in stating that the CAT is essentially an absolute ban on torture, no matter what the circumstances or justification.  (From CAT Art. 2(2): “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”).  There might be some debate as to whether there is an implicit necessity defense in U.S. law, but I don’t think there is much international support for this view.  This absolutist position would seem to limit or perhaps eliminate the “necessity” defense that has drawn so much attention in the U.S. political debate. I think international law’s prohibition on torture in any circumstances explains why international lawyers are among the most vehement critics of the CIA program.

For instance, the U.N.’s Ben Emmerson is calling again for prosecutions, and experts continue to suggest foreign countries may prosecute Bush-era officials for torture international international law.  The ICC may open an investigation, although as Eugene Kontorovich outlines here, there are pretty serious jurisdictional obstacles including questions as to whether the CIA program involving 39 detainees would even satisfy the murky Art. 17 “gravity” requirement.  In any event, I think it is safe to say there consensus among most international lawyers that many if not all of the methods in the CIA program were indeed “torture”  or at least “cruel, inhuman, or degrading” treatment as defined in the Convention Against Torture.  Furthermore, there is strong support for “accountability” via prosecutions of Bush-era officials.

However, it is worth noting that reliable public opinion surveys show that U.S. public opinion has actually shifted away from the international law “absolute ban on torture” view toward a more flexible “torture is OK in some circumstances” view.  FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

An overnight poll after the Senate report was released has not shown drastically different numbers. When asked specifically about waterboarding and the other tactics described in the Senate report, 47% of the “likely voters” surveyed said they agreed the tactics should have been used, with 33% disagreeing and 20% unsure.  It is likely that many of the 20% are unlikely to support an absolute ban on torture, but might agree that waterboarding and other tactics in this particular case were unjustified.

Again, I am not claiming that public opinion should determine whether the CIA program was legal.  But international lawyers cannot ignore the disconnect between US public opinion and international law’s absolute ban on torture.   This disconnect may explain why, despite international law’s rejection of a necessity defense, the U.S. public debate is almost all about whether the CIA program was effective or not. This divergence will probably explain why there will be no prosecutions or truth commissions in the U.S. over the CIA program.  And it should remind international lawyers that even the most widely shared and unquestioned of international treaties can diverge sharply from the general public’s views.

Why the Philippines’ Arbitration Against China is Doomed to Fail

by Julian Ku

Over at The National Interest, I have an essay considering the strategic implications of the Philippines arbitration claim against China.  I argue that the Philippines made a mistake by trying to force China into an arbitration under the UN Convention on the Law of the Sea, and that their “lawfare” strategy is probably going to backfire.

Due in part to domestic pressures for a robust nationalism in defense of all territorial claims, China has not yet reached the point where arbitration seems like a reasonable way to settle its maritime disputes.  And since it has now spent months denouncing the Philippines arbitration as illegal and illegitimate in its domestic press and internationally, it will be even harder to accept any form of international dispute resolution in the future.

This is why the Philippines’ effort to force China to accept arbitration now is doomed to fail and will probably backfire. The Philippines will be in no stronger position vis-à-vis China than it was before the arbitration, even if it wins an award.  Meanwhile, the overall credibility and effectiveness of the UNCLOS dispute resolution system will be called into question.  And the U.S. goal of a China that “abides by and reinforces” international law and norms will be even farther off.

 

The Senate Torture Report as a Truth Commission

by Roger Alford

It so happens that I have been researching the South African Truth and Reconciliation Commission at the same time that the Senate has published an alarming report of abuse and torture committed by Americans in the name of national security. Without equating South African apartheid with the Bush Administration’s policies and practices, I thought that a few insights from the South African TRC are worth highlighting.

First, the Senate Report is a transition point for the United States. Following early revelations of torture, we have had a decade of obfuscation, but now we are moving in the direction of truth-telling. Whatever one thinks of it, the Senate’s actions represent a type of truth commission. Flawed and partisan, but nonetheless a truth commission. Of course, the South African TRC was not simply a truth commission, but also a commission committed to reconciliation and prosecution of key perpetrators. The next step for the United States will be to consider whether and how we approach the next stage in this sad saga, which will involve questions of reconciliation and responsibility.

Second, while the Senate Report has focused on the question of efficacy, we should first and foremost recognize that information released yesterday underscores the moral failure of those who committed unspeakable acts of torture. It will take some time, but we must come to accept that the acts committed in the name of protecting our nation have weakened it. Our standing in the world has been irretrievably diminished. A poem by Desmond Tutu, head of the South African TRC, which he read during the opening session of the TRC in 1996, bears repeating:

The world is wept.
Blood and pain seep into our listening; into our wounded souls.
The sound of your sobbing is my own weeping;
Your wet handkerchief my pillow for a past so exhausted it cannot rest–not yet.
Speak, weep, look, listen, for us all.
Oh, people of the silent hidden past,
let your stories scatter seeds into our lonely frightened winds.
Sow more, until the stillness of this land can soften, can dare to hope and smile and sing;
Until the ghosts can dance unshackled, until our lives can know your sorrows and be healed.

Third, regardless of whether there are prosecutions, at some point those responsible for the policies that led to torture will be invited to apologize. If the South African TRC is any guide, they will refuse. During the South African TRC, in the kindest way possible Desmond Tutu invited former Prime Minister P.W. Botha to apologize. Tutu said to Botha:

I speak on behalf of people who have suffered grievously as a result of policies that we carried out by governments, including the government that he headed. I want to appeal to him. I want to appeal to him to take a chance … to say that he may not himself even have intended the suffering…. He may not have given orders or authorised anything…. I am just saying that the government that he headed caused many of our people deep, deep anguish and pain and suffering…. If Mr. Botha was able to say: I am sorry that the policies of my government caused you pain. Just that. Can he bring himself to say I am sorry that the policies of my government caused you so much pain? That would be a tremendous thing and I appeal to him.

Botha heard this appeal in a court of law, and sat there unmoved and unresponsive. Later, former Prime Minister F.W. de Klerk–the one responsible for freeing Nelson Mandela and setting South Africa on a path toward democracy–was also asked to apologize. He admitted that there were “bad apples” and that security forces committed acts of murder, torture, rape, and assault. But he denied that his administration ever directly or indirectly authorised such actions. Tutu said of de Klerk:

To say I did not know… I find that hard to understand. I have … got to say that I sat there and I was close to tears. I feel sorry for him. I am devastated. [For him] to make an impassioned apology … and then to negate it. All that is required is to say that ‘we believed in this policy but it is a policy that brought about all of this suffering. It is a policy that killed people. Not by accident, deliberately. It was planned.’

His failure to apologize permanently altered Tutu’s estimation of de Klerk.

He would have gone down in history as a truly great South African statesman… What a great man he would have been…. He is a very bright lawyer who qualifies his answers carefully to protect his position, but in doing this he has steadily eroded his stature, becoming in the process a small man, lacking magnanimity and generosity of spirit.

So this is where we are. We are beginning to understand the truth of what happened. Our souls are heavy as we learn of the silent, hidden past. Eventually we will pursue more than just truth. We will discuss a formal truth and reconciliation commission, and will investigate who and how to prosecute the perpetrators of torture. We will hope upon hope for a sincere apology from statesmen, but have little confidence that one will be forthcoming.

What We Fight About When We Fight About Torture

by Jens David Ohlin

Right now we are locked in a complex dispute over the claims in the SSCI Torture Report that the CIA’s torture program was ineffective (as well as illegal). Part of the dispute can be frustrating because I think we are conflating a number of more distinct questions when we ask whether the torture was effective or not. Consider the following article from John Yoo who says that the torture report should be confined to the “dustbin” of history because it is inaccurate. He claims that torturing the detainees helped the CIA find Osama Bin Laden plain and simple.

We need to be more precise in order to have this conversation. Effectiveness or ineffectiveness are actually cluster concepts composed of more specific elements. I will try to tease apart the components here (there are at least five).

First, there is the issue of whether the CIA received intelligence from torture. In evaluating the dueling claims from the SSCI report and the CIA, it seems clear to me that the CIA did receive some intelligence about Bin Laden’s courier from the detainees who were tortured. The real question is evaluating the significance of that intelligence as compared to the other data points in the overall intelligence assessment of the CIA. That’s a complicated question and simply asking whether or not the CIA received intelligence about the courier from the tortured detainees does not tell you anything about the significance of the information. For that you need to ask some different questions which I now elaborate.

Second, there is the question of whether that intelligence was also received from other sources. Even if the tortured detainees provided intelligence about the courier, the more relevant question is whether that information was also received from our sources. That makes a huge difference. The critics of the report (including the CIA) make it sound as if the information from the courier came exclusively from the tortured detainees, but in fact this might have been a situation of overdetermination. The CIA already knew about the courier. If they received the information again from a tortured detainee, it is literally true that they received intelligence from the tortured detainee but the significance of that information is substantially reduced (perhaps to zero).

Third, there is the question of whether the intelligence could have been received from a non-torture source, either by non-coercive interrogation or some non-interrogation method. This question is important because it is relevant to the issue of “unavoidability” that plats a part in the legal analysis of necessity. At least some of the information came from multiple sources including detainees who provided the information before they were tortured. This suggests that torturing the detainees was avoidable because there were other non-torture avenues available for the CIA to get the information. It is also important to ask — and not enough people are asking and discussing this — whether the CIA could have used methods other than interrogation to get information about the courier. Of course, this discussion is stymied by the fact that the public does not have access to CIA methods and practices, which are classified. But how can we determine that the torture was indeed “necessary” without making explicit reference to the lack of other avenues? Unfortunately the CIA does not discuss these other avenues, but they really need to if they want anyone to accept their conclusion that the torture was truly necessary.

Fourth, there is the question of whether the torture saved lives. This is a counterfactual question because it requires imagining a world without torture and asking which terrorist attacks would — and would not — have occurred. This is guess work. When the CIA and their surrogates argue that the torture saved lives, they are asking everyone to engage in a mighty big thought experiment and what the world would have looked liked if they had followed the legal prohibition against torture. This is closely connected to the issue of unavoidability but it really is a separate question. Did it save lives? I have no idea. But at the very least the SSCI report shows that the CIA has failed to make the case that it saved lives.

Fifth, there are the first-order normative questions that are allegedly separate from effectiveness entirely, i.e. regardless of the answers to (1)-(4), was tortured legally or morally appropriate? Obama says that torture is wrong but he refuses to say whether it was effective or not. But these questions are linked in an interesting way. If we are debating whether the necessity defense should apply to torture (which I’ve written about extensively), at least part of the analysis is whether the torture is unavoidable. If torture is ineffective and useless, then it is clearly avoidable and the necessity argument does not apply — regardless of the rest of the legal argument. Of course, there might be other moral and legal reasons to reject torture, but the application of the necessity argument seems central to me.

The present discussion in Washington, DC, is conflating all of these questions into one incoherent mess.