Caleb Wheeler, PhD Student in International Law, Middlesex University, London
Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. One issue in particular, Trump’s attitude towards the use of torture, could significantly diminish the United States’ compliance with its international treaty obligations. This blog post examines the United States’ international obligations with regard to torture, and whether Trump’s policies as proposed through his campaign statements conform to those obligations. It concludes that they do not and that if the United States reauthorises the use of torture it will be in violation of its international commitments.
Trump’s statements on torture
Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. While significant post-election attention has been paid to how Trump’s proposed policies comport with domestic human rights law, it is also important to analyse whether his positions comply with international law. One issue in particular, Trump’s position on the use of torture, could significantly diminish the United States’ compliance with its international (treaty) obligations.
Trump’s campaign rhetoric was fraught with contradictory and troubling statements regarding the use of torture. His initial statement on torture came on 25 November 2015, when, at a campaign rally he stated “[w]ould I approve waterboarding? You bet your ass I would. In a heartbeat. I would approve more than that.”On 17 February 2016, Trump asserted that “torture works”, that he believed in the efficacy of waterboarding and that the United States should employ “much stronger” types of torture than waterboarding when questioning suspected terrorists. On 4 March, Trump appeared to back away from that statement when he told the Wall Street Journal that, if elected, he would not order members of the military to violate international law. He almost immediately changed course again indicating on 6 March 2016 that the United States should expand its laws to authorise the use of greater forms of torture. Trump returned to the topic of torture at the end of June when he reaffirmed his affection for waterboarding as an interrogation technique and suggested that he “[doesn’t] think it is tough enough.”
Trump’s declaration that as president he would not ask American troops to violate international law appears anomalous when placed in the context of his other assertions on the issue of torture. This is particularly true when one considers that he repeatedly advocated in favour of changing domestic law so as to permit a more expansive use of torture as an interrogation technique. However, United States’ law comprehensively bans the use of torture and it would be difficult for Trump to unilaterally alter those provisions.
The United States’ obligations
The prohibition against torture has its roots in the Eighth Amendment of the United States Constitution, which bans the use of cruel and unusual punishment, although there is an ongoing debate as to whether the Eighth Amendment is applicable in all situations involving torture. United States’ law also contains several different explicit prohibitions against torture. 18 U.S.C. §2340A forbids torture if it occurs outside of the United States and the perpetrator is either an American national or can be found in the United States following the alleged criminal act. Additionally, one of Barack Obama’s first acts after becoming president was to issue an executive order in which he specified that individuals detained in an armed conflict were to be treated humanely, were not to be subjected to torture and restricted all interrogation techniques to those discussed in the Army Field Manual 2-22.3. That executive order was reinforced by the McCain-Feinstein Amendment to the National Defense Authorization Act for FY 2016 which made the Army Field Manual 2-22.3 the single and standard guide for all interrogations conducted by American personnel or at American facilities of individuals detained during armed combat. The passage of this Amendment is significant as it eliminates the possibility of Trump unilaterally overruling President Obama’s Executive Order, necessitating Congressional action before torture could be authorised. These protections, together with the 2005 Detainee Treatment Act, which forbids the use of cruel, inhumane or degrading treatment or punishment against detainees, but stops short of banning torture outright, will make it difficult for Trump to permit the renewed use torture.
If Trump were to somehow re-authorise the use of torture under domestic law, those actions would violate the United States’ international obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture. Article 7 of 1966 the International Covenant, which the United States ratified in 1992, unequivocally states “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This prohibition against torture was strengthened and made specific through the 1984 Convention Against Torture. Signed by the United States in 1988 and ratified in 1994, the Convention Against Torture was introduced to combat the use of torture and inhuman or degrading treatment in recognition of the inherent dignity of human beings and the obligation to promote universal respect for human rights found in Article 55 of the Charter of the United Nations.
If taken at face value, always a danger when considering Trump’s statements, his policy regarding the use of torture would conflict with all three subsections of Article 2 of the Convention Against Torture. Article 2(1) requires each State Party to the Convention to enact effective legislation, laws and administrative rules to prevent acts of torture from occurring in territory under its control. Trump’s statements propose just the opposite as he advocates in favour of laws designed to accommodate and encourage harsher forms of torture. Therefore, not only would Trump’s suggested policies not comply with Article 2(1), they would be directly contradictory to it as they would involve enacting laws and legislation designed to facilitate acts of torture.
Article 2(2) does not allow assertions of exceptional circumstances, including war, threat of war, public emergency or domestic political instability, to justify the use of torture. Trump’s statements make clear that he believes that expanding the laws relating to torture are justified to the extent that doing so is necessary in the context of the United States’ conflict with Islamic State. This is akin to invoking exceptional circumstances based on a state of war as Trump has essentially argued that the vicious tactics employed by Islamic State justify similar brutality on the part of the United States. Therefore, his position does not comply with Article 2(2).
Article 2(3) of the Convention Against Torture forbids the invocation of orders from a superior officer as a justification for committing acts of torture. If Trump were to enact his stated policies regarding torture, the laws of the United States would not correspond to international law and the United States would find itself in breach of Article 2(3). That is because American service members are subject to the United States’ Uniform Code of Military Justice, Article 90 of which makes it a crime, sometimes punishable by death, to disobey the lawful command of a superior officer. If torture were legal under the laws of the United States, an order to commit torture would be a lawful command as it would be an order that is consistent with the law. By making torture legal the United States will also legitimise superior orders as a justification for committing torture as the a member of the military will be required to carry out the commanded act as part of his her obligation under Article 90 of the Uniform Code of Military Justice.
To the extent that the United States is engaged in an armed conflict with Islamic State, any change to the United States’ practices regarding torture would also result in the violation of numerous provisions of the Geneva Conventions. The Geneva Conventions and their Additional Protocols outlaw torture in most instances involving armed combat. Further, acts of torture as described in the Geneva Conventions and the Additional Protocols are considered grave breaches of each convention and, under Article 85 of the First Additional Protocol, those grave breaches can become war crimes. As a result, the decision to commit torture under any of these circumstances would violate the respective convention and might also be considered a war crime.
Above and beyond the United States’ treaty obligations is the fact that the prohibition against torture is considered jus cogens. As such, it is non-derogable and assumes a rank above treaty law and rules of ordinary customary international law. The classification of the prohibition against torture would have a two-fold effect on the United States. First, it would serve to delegitimise any judicial, legislative or administrative act authorising torture on a national level. Second, those engaging in torture under relevant domestic laws would be exposed to prosecution in international jurisdictions or by a subsequent regime in the United States. This could result in potential repercussions against citizens of the United States that authorise or commit acts of torture, even if done under the pretext of positive national law.
Any change to American policy expanding the use of torture would be in direct contravention of jus cogens and its international treaty obligations. Unfortunately, Trump has signaled a willingness to modify or opt out of treaty commitments that he believes do not directly benefit the United States and it is unlikely that he would allow the jus cogens nature of the prohibition against torture to constrain his actions as president. Although Trump has stated that he would not direct American troops to violate international law if elected president, his oft-repeated desire to expand the use of torture under domestic law weakens any argument suggesting that he might comply with international law on this issue. Hopefully, Congress will resist any attempt by Trump to re-authorise the use of torture and the United States will continue to comply with the applicable international human rights standards.