The analogy of the black hole was first employed as a description of Guantánamo Bay by Lord Steyn in the Twenty-Seventh F A Mann Lecture[4] in order to describe the right-less vacuum into which the US sought to place the detainees in Guantánamo Bay.[5] The analogy also warns that by denying the detainees’ status as rights-holders, US society itself — not just the detainees, who are usually, but not always, foreigners[6] — may be sucked into the vortex.[7]
Four years after Lord Steyn gave his speech, US policy in relation to Guantánamo Bay remains largely unchanged, although there have been some important victories in US courts and some strong denunciations of US policy at the international level. The US government has tried to shield its policies from scrutiny with variations on the theme of the black hole, such as attempting to deprive US courts of jurisdiction or denying that treaties that prohibit torture extend to Guantánamo. I turn first to examine the extent to which US courts have confronted and dismissed the strategies outlined above.
US courts have granted the detainees some recognition of their rights, resulting in changes to the legislative regime governing the treatment of the detainees. In Hamdi v Rumsfield,[8] the Court found that detainees had the right to challenge their classification as an enemy combatant before a neutral decision-maker. Combatant Status Review Tribunals were then established for the purposes of this task.
In Hamdan v Rumsfeld, the Court held that the military commissions established to try Guantánamo detainees were not validly constituted, because, among other things, they violated common Article 3 of the Geneva Conventions.[9] Article 3 requires detainees to be tried by a ‘regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’[10] This phrase incorporates the customary international legal requirements for a fair trial, including the right of accused persons both to be present at their trial and to see the evidence against them.[11]
So long as the US government regulates the treatment of the detainees, through the establishment of military commissions and so on, any attempt to keep questions regarding the detentions completely out of the courts may be doomed to failure. The very act of regulation contradicts the concept of the black hole, and opens the US government up to scrutiny on the basis of standards that are not of the executive’s making. In the latest of the Guantánamo detainees’ victories against the US government, the US Court of Appeals (DC Circuit) held that in order for the courts to fulfil their role in ‘determining the validity’ of a Combatant Status Review Tribunal’s determination under the Detainee Treatment Act 2005 (USA),
the court must be able to view the Government Information with the aid of counsel for both parties; [and] a detainee’s counsel who has seen only the subset of the Government Information presented to the Tribunal is in no position to aid the court. There is simply no other way for the counsel to present an argument that the Recorder withheld exculpatory evidence from the Tribunal in violation of the specified procedures.[12]
The US government has, however, attempted to keep at bay what is perhaps the most fundamental question concerning US courts’ jurisdiction — the constitutional right of detainees to petition the court for habeas corpus — using the device of ‘jurisdiction stripping’[13] (or what Australians call a ‘privative clause’). The first round of jurisdiction-stripping came in the wake of Hamdi [14] and Rasul v Bush,[15] in which the Supreme Court held that the statutory right to claim habeas corpus applied to the Guantánamo detainees. The Detainee Treatment Act 2005 attempted to remove the right to claim habeas corpus retrospectively. However, in Hamdan,[16] the Supreme Court found, on the basis of ordinary principles of statutory construction, that the courts had not been deprived of their jurisdiction. The question of whether Congress could achieve its aim with a clearer statute was left open. Subsequently, the Military Commissions Act 2006 (USA) was enacted, and its privative clause has so far been upheld, both as in accordance with principles of statutory interpretation and as constitutional by the US Court of Appeals (DC Circuit).[17]
The US has also sought to rely on the black hole conceit at the international level. In its dealings with the UN Human Rights system, the US has denied that the human rights treaties to which it is party apply in Guantánamo. The US relies on the fact that Guantánamo is not fully ‘sovereign’ US territory (as opposed to being completely within US jurisdiction). The US has also relied on strained readings of the terms of the treaties as well as US reservations to them. The report by five of the UN Commission on Human Rights mandate-holders[18] and the official US response[19] provides us with a good illustration of the US’s argumentative strategy.
In their report, the five mandate-holders made several damning conclusions. First, they concluded that the detention is, or rather the detentions are, governed by general international human rights law, despite the US’s insistence that they are governed solely by the law of armed conflict. From this starting point, they went on to find that the detentions and military commissions are in breach of Article 9 of the International Covenant on Civil and Political Rights (ICCPR) — the right to liberty — as well as Article 14 which guarantees the right to a fair trial.[20]
The finding that general human rights law governs the situation is made after the mandate‑holders draw attention to several important factual variations in the detention of particular detainees. These concern:
The context in which persons were initially detained — whether on the battle‑field in Afghanistan or, rather, off the battle-field in a distinctly civilian context as in the case of six Algerians arrested in Bosnia-Herzegovina (a factor which was also important to the Supreme Court in Hamdan when it found the military commissions to be invalidly constituted);[21]
The purpose for which the persons are detained — whether they are ‘combatants’ detained for the duration of the armed conflict or persons detained for criminal prosecution as a result of activities that took place during such conflict, or, by contrast, persons detained for the illegitimate purpose of intelligence-gathering; and
The prevailing context of the detentions, namely whether the United States was or continued to be currently engaged in an international armed conflict between two parties to the Third and Fourth Geneva Conventions.[22]
The mandate-holders said that the US was not, at the time of their investigation, engaged in an international armed conflict.[23] Accordingly, it was not permissible for the US to read down the guarantees associated with the protection against arbitrary detention in Article 9 of the ICCPR so that they cohere with the lex specialis prevailing during a time of international armed conflict.[24] The mandate-holders noted that the US is a party to the ICCPR and that Article 2 of the ICCPR applies to persons within the effective control of the state party, whether or not they are within the physical territory of the state party.[25]
The US response to this finding was as follows:
The United States … is engaged in a continuing armed conflict against Al Qaida … the law of war applies to the conduct of that war and … related detention operations, and … the International Covenant on Civil and Political Rights, by its express terms, applies only to “individuals within its territory and subject to its jurisdiction.” … The Report’s legal analysis rests on [a] flawed position … [which] leads to a manifestly absurd result; that is, during an ongoing armed conflict, unlawful combatants receive more procedural rights than would lawful combatants under the Geneva Conventions.[26]
There are several problems with this response. The main one lies in the US argument that the global ‘war on terror’ is an armed conflict, rather than a struggle against various groups committing criminal acts. It is to be expected that all persons receive more procedural rights than lawful combatants under the Geneva Conventions when there is no armed conflict. On the other hand, the Supreme Court accepted that Hamdan had been detained during the course of a non‑international armed conflict in Afghanistan, in which case some of the laws of war are applicable.[27] However, the Supreme Court did acknowledge problems with using military commissions with respect to particular detainees where they had not been detained within the theatre of war and when the charges against them did not relate to well-established war crimes.[28] The report of the mandate-holders and the decision of the Supreme Court in Hamdan both demonstrate that while there may be some aspects of the ‘war on terror’ that really do involve armed conflict and require the invocation of the laws of war, the attempt to categorise every governmental action against every detainee as part of a ‘war’ is ridiculous.
As for the distinction between unlawful combatants and lawful combatants — terminology that is not contained in any international instrument dealing with international humanitarian law — that distinction means that those designated as unlawful combatants forfeit possible status as prisoners of war. However, this does not leave them in a rights vacuum. They cannot be tortured, they are still entitled to a fair trial and they may not be arbitrarily detained.[29] There are fundamental linkages between these three aspects of the detainees’ treatment in Guantánamo Bay as it is clear that the prolonged detention and other forms of ill-treatment occurring there will impact on any prospect of a fair trial at the end of the day.
Finally, the interpretation adopted by the Human Rights Committee in relation to the language of Article 2 of the ICCPR,[30] upon which the five mandate-holders draw, is preferable to that adopted by the US. Article 2 requires a state party ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.’ The word ‘and’ in Article 2 is read disjunctively, rather than as imposing cumulative prerequisites for legal responsibility. The Committee has recently pointedly reaffirmed its interpretation in its concluding observations on the US periodic report under Article 40 of the ICCPR.[31] The Human Rights Committee’s reading is one of the alternatives open on the ordinary meaning of the text and it is the one that coheres with the object and purpose of the treaty and the intentions of the framers.[32] The language of Article 2 was designed to avoid responsibility in situations where another sovereign was responsible — for example, in the case of occupying troops.[33] The US, on the other hand, seeks to achieve the opposite (and manifestly absurd) result in relation to Guantánamo Bay, namely to do what it would not be allowed to do on US soil in a geographical region that is technically not part of the US but that is nevertheless subject to its physical and legal jurisdiction as a result of its lease agreement with Cuba.
The mandate-holders made a second very important finding, namely that the US is in violation of the prohibitions on torture enshrined in the Convention against Torture and Cruel, Inhuman or Degrading Treatment of Punishment (‘Convention against Torture’) and the ICCPR. Des Manderson, in this volume,[34] attacks the philosophical basis for arguments that torture may sometimes be justified. In this chapter, I offer a more limited, legal discussion of the issues as they arose in the context of the exchange between the mandate-holders and the US, and in the context of subsequent consideration by the Human Rights Committee of the US’ second and third periodic reports under the ICCPR.
There are four main aspects of the treatment of the Guantánamo detainees that raise allegations of torture. They are the interrogation techniques; the overall conditions of detention; excessive force during transportation; and force-feeding of detainees on hunger strike. The five mandate-holders’ report found that the conditions of detention,
in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under Article 10(1) of the ICCPR to be treated with humanity and with respect for the inherent dignity of the human person.[35]
The excessive violence and force-feeding were found to constitute torture — the latter finding evoking an expression of ‘bewilderment’ by the US given that the purpose of force-feeding is to save lives.[36] Interesting as this aspect of the treatment of detainees is, I will focus on the issue of the interrogation techniques, which have attracted so much attention in the media.
As described by the mandate-holders’ report, the interrogation techniques authorised at the time of writing the report were as follows:
B. Incentive/Removal of Incentive ie, comfort items;
S. Change of Scenery Down might include exposure to extreme temperatures and deprivation of light and auditory stimuli;
U. Environmental Manipulation: Altering the environment to create moderate discomfort (eg, adjusting temperature or introducing an unpleasant smell).
V. Sleep Adjustment; Adjusting the sleeping times of the detainee (eg, reversing sleep cycles from night to day). This technique is not sleep deprivation.
X. Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment.[37]
The US has defended these techniques with various arguments, the first of which is a narrow reading of the definition of torture. In a notorious advice from J S Bybee, then Assistant Attorney-General, to Alberto Gonzales, then Counsel advising the President, torture was defined as follows:
[W]e conclude that torture as defined in and proscribed by Sections 2340‑2340A [of title 18 of the United States Code], covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder. … Because the acts inflicting torture are extreme, there is a significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture. … Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.[38]
The advice makes clear that the relevant sections of the US Code are designed to implement the US’ reservations and understandings to the ICCPR and CAT[39] (the Convention against Torture).[40]
This memorandum has been overtaken by the memorandum from former Acting Assistant Attorney-General, Daniel Levin, to James B Comey, then Deputy Attorney‑General.[41] Nevertheless, it seems plain from the US’ response to the five mandate-holders’ report that the US still seeks to rely on the arguments put forward in the original advice. In its response to the report, the US coyly, cryptically and in my view, largely mischievously, asserted that the mandate-holders,
have relied on international human rights instruments … without serious analysis of whether the instruments by their terms apply extraterritorially; whether the United States is a State Party — or has filed reservations or understandings — to the instrument; whether the instrument … is legally binding or not; or whether the provisions cited have the meaning ascribed to them in the Unedited Report.[42]
The argument concerning extra-territoriality has already been dealt with.[43] The next question is whether the reservations — another kind of ‘black hole’ — provide an excuse for the US.
The US has entered reservations to Article 7 of the ICCPR and Article 16 of the Convention against Torture stipulating that the US is bound by the provisions concerning cruel, inhuman or degrading treatment or punishment ‘only insofar as the term … means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.’[44] The US has also entered a ‘declaration of understanding’ to Article 1 of the Convention against Torture. Article 1 contains the definition of torture. The US ‘understanding’ is as follows:
The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.[45]
Interestingly, the US did not enter a similar reservation to the ICCPR, which, although it does not define torture, does prohibit it. This raises an arcane question. Given that the Convention against Torture definition is read into Article 7 of the ICCPR, could the US rely on its reservation to the Convention against Torture with respect to its obligations under the ICCPR? The answer has to be no. The Human Rights Committee did not consider such an argument when it expressed concerns about the interrogation techniques in its concluding observations on the US periodic report under Article 40 of the ICCPR.[46] This is undoubtedly because the US is required to enter appropriate reservations to all treaties to which it becomes party if it wishes to narrow its obligations.
In any event, I doubt that the reservation or the understanding is helpful to the US. To begin with there is the question of validity. The mandate-holders note the view taken by the Human Rights Committee that the reservation to the ICCPR is invalid.[47] Of course the decision by the Human Rights Committee that it has the power of determination in relation to reservations and may therefore sever the reservation[48] is controversial. However, if it is accepted that, as the mandate-holders say, the prohibition on torture is a norm of jus cogens, then it is arguable that no reservations to the definition of torture are permitted. The International Law Commission’s work on reservations to treaties has avoided drawing this conclusion owing to the theoretical debate between those who think certain reservations are simply impermissible and invalid and those who think that the key issue is acceptance or rejection of reservations by other states (the question of ‘opposability’ of reservations to other states). However, the ILC has provisionally adopted a guideline which states that ‘[a] reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law’.[49] In other words, the US reservations cannot have the effect of permitting the US to practise torture on the basis of a definition of torture that does not accord with the internationally accepted definition. It should also be said that the norm prohibiting torture binds the United States as a matter of customary international law, regardless of the impact of reservations to treaties.[50]
These propositions also stand true for the ‘understanding’ that might well be a disguised reservation,[51] and which, in any event, could only provide an acceptable interpretation of the treaty if it was consistent with the broader international community’s interpretation of torture. This, however, is not the case. In its concluding observations concerning the US’ initial report, the Committee against Torture expressed its concern about the US’ ‘failure to enact a federal crime of torture in terms consistent with article 1 of the Convention’, and ‘[t]he reservation lodged to article 16, in violation of the Convention, the effect of which is to limit the application of the Convention’.[52] The Committee recommended that the US ‘withdraw its reservations, interpretations and understandings relating to the Convention’.[53] More recently, in its concluding observations on the US’ second report, the Committee reiterated this recommendation as well as making the following, very specific one:
The State party should ensure that acts of psychological torture, prohibited by the Convention, are not limited to ‘prolonged mental harm’ as set out in the State party’s understandings lodged at the time of ratification of the Convention, but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or its duration.[54]
These responses from the Committee against Torture, along with the typically few, but principled objections to the US’ reservations and understandings by other states parties,[55] show that the US’ right to make the reservations and understandings in question is not accepted.
Having dismissed the contentions concerning extra-territoriality and reservations, the remaining arguments are the definitional question and the argument concerning necessity, which appears as an afterthought in case the definitional arguments are unsustainable and it is necessary to contend that ‘anything goes’ in wartime. The argument based on necessity should be put to rest first. Simon Bronitt’s chapter in this volume[56] refutes the necessity argument on the basis that ‘balancing’ is an inappropriate framework for dealing with terrorism and human rights, given that its effect is to trade away human rights in the name of ‘security’. Similarly, Manderson in Chapter 3 this volume, puts paid to the idea that torture — a consciously manipulative process that seeks to gain a particular end and is used by the state — could ever be viewed as an act of self‑defence. Action in self-defence is an immediate response by a person directly under threat. Moreover, it should be noted that although the Bybee-Gonzales memo is discussing domestic US law, as a matter of international law, the US’ contention is also unsound. It has already been shown that the laws of war do not oust general human rights law, so any argument concerning ‘military necessity’ as part of the laws of war may rest on a shaky foundation. The fact that torture is prohibited by the laws of war and is a war crime[57] makes a nonsense of any such argument in any event. It is also highly questionable whether one can mount a case based on a more general defence of necessity that lies outside the parameters of the exceptions established by the governing human rights instruments. As noted by the International Court of Justice in the opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ‘[s]ince those treaties already address considerations of this kind within their own provisions, it might be asked whether a state of necessity as recognized in customary international law could be invoked with regard to those treaties as a ground for precluding the wrongfulness of the measures or decisions being challenged.’[58] In any event, as the prohibition on torture is a norm of jus cogens, no derogation is permitted on any basis whatsoever.
All that is left, then, is the definitional question. Article 1 of the Convention against Torture defines torture as an act that inflicts ‘severe pain or suffering, whether physical or mental’.[59] It also requires participation or acquiescence of a public official and the pain has to be inflicted for particular purposes, such as gaining a confession from a person. The Bybee-Gonzales memo imposes additional requirements to the international definition of torture that do not comport with the ordinary meaning of the words of the Convention, read in the light of their context and the object and purpose of the Convention.[60] Internationally, the weight of opinion is against the US. The report of the five mandate-holders concluded that some of the techniques, particularly if used simultaneously, amount to torture.[61]
Having dismissed all the US’ legal arguments, a more intriguing question arises. The true puzzle is not whether or not the interrogation techniques constitute torture. Rather, it is why, given that they clearly constitute cruel, inhuman or degrading treatment in any event[62] and the Human Rights Committee and the Committee against Torture have both indicated that this is the case,[63] the US seeks to utilise such techniques. Evidence gained from torture is unreliable, and those who have argued to the contrary have met with sound rebuttals.[64] Do US officials think that the evidence gained from cruel, inhuman or degrading treatment or punishment is reliable? If not, are the detention and interrogation themselves a form of punishment of the individuals concerned? This is really what torture is about — the transformation of a person, the very self, with that person’s body used as a means to effect this transformation.[65] As the Secretary-General of the UN has noted, torture is a form of terror.[66] The black hole has swallowed its creators.
[4] Above n 2.
[5] According to Steyn, ‘the purpose of holding the prisoners at Guantánamo Bay was and is to put them beyond the rule of law, beyond the protection of any courts, and at the mercy of the victors.’ Ibid 8.
[6] A recent decision from the US Supreme Court concerns a US national arrested at O’Hare airport in Chicago after returning from Pakistan: Padilla v Hanft, 547 U.S. 1062 (2006). The Supreme Court declined to hear the case because Padilla’s case is now being heard by the civilian justice system instead of the controversial military commissions and he is entitled to the full protection of the ordinary criminal law, including the right to a speedy trial. In their explanation of their vote to deny certiarari, Chief Justice Roberts and Justices Kennedy and Stevens concluded that ‘Padilla’s current custody is part of the relief he sought, and … its lawfulness is uncontested’. Ibid 4.
[7] ‘[D]enial of justice to foreigners was bound to erode the civil liberties of citizens in the United States.’ Lord Steyn, above n 2, 12.
[8] Hamdi v Rumsfield, 543 US 507 (2004).
[9] Hamdan v Rumsfeld, 126 S Ct 2749 (2006), (Stevens J), 2797.
[10] See eg, art 3(1)(d), Geneva Convention relative to the Treatment of Prisoners of War, 75 UNTS 135 (entered into force 21 October 1950).
[11] Hamdan, above n 9, 2798.
[12] Bismullah v Gates, 501 F.3d 178, 196 (D.C. Cir. 2007), 2007 WL 2067938, 6. It should also be noted that in two cases, the Military Commissions have refused to proceed with cases on the basis that the Combatant Status Review Tribunals had not determined that the detainees concerned were enemy alien combatants as required for the purposes of the Military Commissions Act 2006 (US), only that they were enemy combatants. See United States of America v Omar Ahmed Khadr, 4 June 2007 <http://www.nimj.com/documents/Khadr%20Order%20on%20Jurisdiction.pdf>, and United States of America v Salim Ahmed Hamdan, 4 June 2007.
[13] See generally G Shay and J Kalb, ‘More Stories of Jurisdiction-Stripping and Executive Power: Interpreting the Prison Litigation Reform Act (PLRA)’ (2007) (29)(1) Cardozo Law Review 291.
[14] Above n 8.
[15] Rasul v Bush, 542 U.S. 466 (2004).
[16] Above n 9.
[17] Boumedienne v Bush, 476 F 3d 981 (DC Cir 2007). Interestingly, in Boumedienne v Bush, the D C Circuit disagreed with the Supreme Court’s reading of the common law right to habeas corpus in Rasul, holding that under the common law in 1789 (when the US Constitution came into force), habeas corpus ‘would not have been available to aliens … without presence or property within the United States.’ Boumedienne, ibid 990. It will be interesting to see whether the Supreme Court continues to follow its own reading once Justice Roberts (formerly of the D C Circuit Court) is able to sit. Justice Roberts abstained from the decision in Hamdan because he had ruled on the decision of the DC Circuit Court which was being appealed. See Hamdan v Rumsfeld, 415 F 3d 33 (DC Cir 2005).
[18] ‘Situation of detainees at Guantánamo Bay’, Report of the Chairperson of the Working Group on Arbitrary Detention, Ms Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Mr Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Ms Asma Jahangir and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr Paul Hunt, 15 February 2006, UN Doc E/CN.4/2006/120 (‘the five mandate-holders’ report’).
[19] Letter dated 31 January 2006, addressed to the Office of the High Commissioner for Human Rights, by the Permanent Representative of the United States of America to the United Nations and Other International Organizations in Geneva, ibid, Annex 2, 43‑4.
[20] Above n 18, [84] and [85].
[21] Above n 9, (Stevens J), 2777‑8.
[22] Geneva Convention relative to the Treatment of Prisoners of War, above n 10 (‘Third Geneva Convention’); Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (entered into force 21 October 1950) (‘Fourth Geneva Convention’).
[23] Above n 18, [24]. The US Supreme Court found that common art 3 of the Geneva Conventions was applicable precisely because the conflict between Al Qa’ida and the US should be considered a ‘conflict not of an international character’ ie, one that does not involve conflict between two states. Above n 9, (Stevens J), 2796.
[24] Above n 18, [24].
[25] Ibid [11].
[26] Above n 19, 54.
[27] Above n 9, (Stevens J), 2796.
[28] Above n 9, (Stevens J), 2777‑8 (relating to when and where persons were apprehended); 2779‑86 (concerning the need for a well-established war crime).
[29] The prohibition on torture is a well-accepted norm of jus cogens. According to the Human Rights Committee, the rights to a fair trial and the prohibition on arbitrary detention, while not listed as non-derogable rights in art 4 of the ICCPR, are also jus cogens and may never be derogated from. Human Rights Committee, General Comment No 29, UN Doc CCPR/C/21/Rev.1/Add.11, 31 August 2001. Even a more cautious reading of jus cogens norms to include prolonged, arbitrary detention would pose a challenge to the detentions at Guantánamo Bay. Academic writing has also pointed out that it doesn’t matter what labels are used, some model of rights will still be applicable. Tom Farer points out that the military commissions model shares many of the same fair trial deficits of the military trials for civilians conducted in Latin America when he was a member of the Inter‑American Commission on Human Rights. T J Farer, ‘The Two Faces of Terror’ (2007) 101 American Journal of International Law 363. Tom Franck, who appears to accept that new norms may be required for the post-September 11 world still requires that a minimum rule of law model has to apply. T M Franck, ‘Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terror’ (2004) 98 American Journal of International Law 686. See also the point that the rights of ‘protected civilians’ may be applicable in L Vierucci, ‘Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are entitled’ (2003) 1 Journal of International Criminal Justice 284.
[30] Human Rights Committee, General Comment No 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, [10].
[31] Human Rights Committee, Concluding Observations, United States of America, CCPR/C/USA/CO3, 15 September 2006, [10].
[32] This is consistent with the usual rules of treaty interpretation, as codified in art 31 of the Vienna Convention on the Law of Treaties, 115 UNTS 331 (entered into force 27 January 1980).
[33] See the discussion in M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 1st ed, (Strasbourg: NP Engel, 1993) 41‑3.
[34] See Chapter 3.
[35] Above n 18, [88].
[36] Above n 19, 53.
[37] ‘Counter Resistance Techniques in the War on Terror’, Secretary of Defence memorandum for the commander, US Southern command, 16 April 2005, 1, see above n 18, [50].
[38] See Memorandum for Alberto R Gonzales Counsel to the President, from Jay S Bybee, Assistant Attorney-General, US Department of Justice, Re Standards of Conduct for Interrogation under 18 USC, (‘Bybee-Gonzales memorandum’) in K J Greenberg and J L Dratel, The Torture Papers: the road to Abu Ghraib (Cambridge: Cambridge University Press, 2005) 172, 213‑4.
[39] Bybee-Gonzales memorandum, ibid 172 and 183.
[40] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (entered into force 26 June 1987).
[41] Memorandum for James B Comey Deputy Attorney-General, from Daniel Levin Acting Assistant Attorney-General, US Department of Justice, Re Legal Standards Applicable Under 18 USC §§ 2340‑2340A. The second memorandum specifically replaces the earlier memo in its entirety in response to a request that the earlier memo be rescinded.
[42] Above n 19, 54.
[43] See above n 30 and accompanying text.
[44] See the reservations and declarations in the Multilateral Treaties Deposited with the Secretary‑General in the UN Treaty Collection: <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty6.asp> (ICCPR) <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty14.asp> (CAT).
[45] See the US reservations and declarations to the Convention Against Torture, ibid.
[46] Concluding Observations of the Human Rights Committee, UN Doc CCPR/C/USA/CO/3/Rev 1, 18 December 2006, [13].
[47] Above n 18, [45]. In General Comment No 24, the Human Rights Committee states that: ‘Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant. Although treaties that are mere exchanges of obligations between States allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would not be.’ Human Rights Committee, General Comment No 24, Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under art 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6, 11 April, 1994.
[48] General Comment No 24, ibid [18].
[49] See Guideline 3.1.9. Reservations contrary to a rule of jus cogens. International Law Commission, Report on the Work of its Fifty-Ninth Session, UN Doc. A/62/10, 2007, chapter IV, 65. For the explanation for the compromise, see the commentary to the guideline, ibid 99‑104.
[50] In my view, a norm of jus cogens must, by definition, form part of customary or general international law. The test for a norm of jus cogens set out in art 53 of the Vienna Convention on the Law of Treaties speaks of its acceptance by the international community as a whole.
[51] It is accepted that an understanding that attempts to alter the sense of treaty words is in fact a reservation: Belilos v Switzerland (10328183) [1988] ECHR 4 (29 April 1988).
[52] Report of the Committee against Torture, UN GAOR Supp. No 44 (A/55/44) (2000), [175][180], [179].
[53] Ibid [180].
[54] Concluding Observations of the Committee against Torture, UN Doc. CAT/C/USA/CO/2, 25 July 2006, [13].
[55] Of the three objections received, two noted that the understanding had no effect. Only three states lodged objections to the US’ reservations and understandings: Finland, the Netherlands and Sweden. The Netherlands stated that ‘[t]he Government of the Kingdom of the Netherlands considers the following understandings to have no impact on the obligations of the United States of America under the Convention: II.1 a [the understanding concerning the definition in Article 1 of the Convention] [t]his understanding appears to restrict the scope of the definition of torture under article 1 of the Convention.’ Sweden stated that ‘[i]t is the view of the Government of Sweden that the understandings expressed by the United States of America do not relieve the United States of America as a party to the Convention from the responsibility to fulfil the obligations undertaken therein.’
[56] See Chapter 5.
[57] Common art 3 of the Geneva Conventions prohibits torture. Torture is also defined as one of the ‘grave breaches’ that can result in prosecutions. See, eg, art 130 of the Third Geneva Convention, above n 10.
[58] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice, 9 July 2004, [2004] ICJ Rep 136, [140]. The Court did not have to decide the question given that it held that the construction of the wall was not the ‘only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction’: ibid.
[59] Above n 40.
[60] This reading is required by the ordinary rules of treaty interpretation under art 31 of the Vienna Convention on the Law of Treaties above, n 32. For a critique of the ethics of the memo see R B Bilder and D F Vagts, ‘Speaking Law to Power: Lawyers and Torture’ (2004) 98 American Journal of International Law 689.
[61] Above n 18, [87]. The mandate-holders’ conclusion was based, among other things, on the interviews with former detainees undertaken by the Special Rapporteur on Torture, which yielded the information that detainees perceived the techniques to cause severe suffering: ibid [52]. The remaining elements of the prohibition on torture are clearly met, as stated in the report, ibid [51]. We should note here that the US did not want any interviews to take place. Three of the mandate‑holders were offered a one-day visit to Guantánamo Bay by the US government. However, the visit was to be subject to the proviso that no private interviews could be carried out with detainees. The offer was therefore refused as being inconsistent with the work of the special procedures of the UN Commission on Human Rights and interviews were undertaken with former detainees instead. Yet the US castigated the mandate-holders for not basing their conclusions ‘clearly in the facts’: ibid 53.
[62] See generally M E O’Connell, ‘Affirming the Ban on Harsh Interrogation’ (2005) 66 Ohio State Law Journal 1231.
[63] See the Concluding Observations of the Human Rights Committee, UN Doc. CCPR/C/USA/CO/3/Rev 1, 18 December 2006, [13], and the Concluding Observations of the Committee against Torture, n 54 above, [13], [19], [22], [24].
[64] See, eg, the rejoinder to the arguments in favour of torture put by Mirko Bagaric and Julie Clarke in P N S Rumney, ‘Is Coercive Interrogation of Terrorist Suspects Effective? A response to Bagaric and Clarke’ (2006) 40 University of San Francisco Law Review 479.
[65] See the analysis in R Copelon, ‘Intimate Terror: Understanding Domestic Violence as Torture’ in R J Cook (ed), Human Rights of Women (Pennsylvania: University of Pennysylvania Press, 1994); P Dubois, Torture and Truth (New York: Routledge, 1991).
[66] UN Secretary-General, Press Release, ‘Torture, Instrument of Terror, Can Never Be Used to Fight Terror’, SG/SM/10257 HR/4877 OBV/533, <http://www.un.org/News/ Press/docs/2005/sgsm10257.doc.htm>.