Amicus Curiae Brief — Arar v. Ashcroft

— ‘.r3 US

p | MAR 5 - 2010

- 09-923

ae ee pan | OEEICE OF THE CLERK

jn The

Supreme Court of the United States

MAHER ARAR,

a a. ae

Fetitioner,

\

JOHN ASHCROFT, FORMER ATTORNEY

GENERAL OF THE UNITED STATES, ET AL..,

Respo ndents.

— & —______

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

= @ —_“__“__-_+- -

BRIEF AMICUS CURIAE OF MANFRED

NOWAK AND THEO VAN BOVEN, CURRENT

AND FORMER U.N. SPECIAL RAPPORTEURS

ON TORTURE AND OTHER CRUEL, INHUMAN

AND DEGRADING TREATMENT

IN SUPPORT OF THE ISSUANCE

OF A WRIT OF CERTIORARI

—— -

BRIDGET ARIMOND

Counsel of Record

CENTER FOR INTERNATIONAL HUMAN RIGHTS

NORTHWESTERN UNIVERSITY SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-8579

b-ammond@law northwestern.edu

Attorney for Amici Curiae

CUCKLE LAW BRIEF PRINTING ¢ (800! 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTEREST OF AMICI CURIALE ..............c00cec0e0

SUMMARY OF ARGUMENT .....

ARGUMENT

I. International Law Unequivocally Prohib-

its Torture and

Refoulement to Face

"Weetaere oo sakse acne eee

A. Torture is absolutely prohibited........

(1) International Human Rights Law

(2) International Humanitarian Law...

(3) Customary International Law

B.

Refoulement to face torture is abso-

lutely prohibited

The United States has Undertaken to be

Bound by the International Prohibition of

Torture and Refoulement to Face Torture...

CONCLUSION.

TABLE OF AUTHORITIES

Pace

CASES

Chahal v. United Kingdom, 23 Eur. Ct. H.R

0 ae 16, |

Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir

1980)

Prosecutor v. Kunarac & Others, Case No. IT

96-23-T & IT-96-23/1-T, Judgement (Feb. 22

- i a

Soering v. United Kingdom, 11 Eur. Ct. H.R

TOE Fa) CLIOD) .........00..0cc0reee ne 16

FEDERAL STATUTES. EXECUTIVE ORDERS

AND CONGRESSIONAL RESOLUTIONS

18 U.S.C. §§ 2340-2340A (2006) Z|

Exec Order No. 13.491 (Jan. 22. 2009). 74 Fed

Reg. 4,893 (Jan. 27, 2009). .20, 22

>

Foreign Affairs Reform and Restructuring Act

of 1998, Pub. L. No. 105-277, Div. G., Title

XXII, § 2242(a), 112 Stat. 2681-822. codified

as 8 U.S.C. § 1231 note (2006).......... a 22

H.R. Con. Res. 185, 105th Cong 199&

ee ecevivevececetcvesoncness 18

Torture Victim Protection Act, 28 U.S.C. § 1350

EC cnudacguceescecvowess 2]

War Crimes Act of 1996. 18 U.S< y

Pere) .........-.. dncchucs Sie

TABLE OF AUTHORITIES — Continued

TREATIES AND DECLARATIONS

African [Banjul] Charter on Human and

Peoples’ Rights, June 27, 1981, O.A.U. Doc.

Page

CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217 ............0....6

Amervican Convention on Human Rights, Nov.

22, 1969, O.A.S.T.S. No. 36, 1144 U.N.TS.

123

Convention against Torture and Other Cruel,

Inhuman or Degrading ‘Treatment or Puntish-

ment, opened for signature Dec. 10, 1984, 5S.

Treaty Doc. No. 100-20 (1988), 1465 U.N.TS.

i, €, By o,

Convention for the Protection of Human Rights

and Fundamental Freedoms. entered into

force Sept. 3, 1953, 213 U.N.T.S. 222.......

Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed

Forces in the Field, Aug. 12, 1949, 6 U.S.T.

De. Ms BOR Oe ee. 5 ee hh aS

Geneva Convention for the Amelioration of the

Condition of Wounded, Sick and Ship-

wrecked Members of Armed Forces at Sea,

Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.TS.

35 10, 11, 14,

Geneva Convention Relative to the Protection of

Civilian Persons in Time of War, Aug. 12, 1949,

6 U.S.T. 3516, 75 U.N.TS. 287.........10, 11,

18,

19

TABLE OF AUTHORITIES — Continued

Geneva Convention Relative to the Treatment

of Prisoners of War, Aug. 12, 1949, 6 U.S.T

BAIG. TG UY Te LG coionccccccccsccscss 2. 21. 14.

International Covenant on Civil and Political

Rights, opened for signature Dec. 19, 1966,

+) fi &

S. Exec. Doc. C, D, E, F. 95-2 (1978). 999

U.N. a. d7k

Rome Statute of the International Criminal

Court, opened for signature July 17, 1998,

2187 U.N.T:S. 90

Universal Declaration of Human Rights, G.A

Res. 217A, U.N. GAOR, 3d Sess., Ist plen

mtg., U.N. Doc. A/810 (Dec. 12, 1948)............

Vienna Convention on the Law of Treaties.

I

opened for signature May 23, 1969, 1155

[J NJ TS Qn

‘ sks BEF

OTHER AUTHORITIES

Barack Obama, President of the U.S., Respon-

sibility for Our Common Future, Address to

the United Nations General Assembly (Sept

23, 2009) (transcript available at http://www

un.org/ga/64/generaldebate/pdf/US_en.pdf) (last

visited Mar. 2, 2010)

Comm. against Torture (CAT), Consideration

of Reports Submitted By States Parties under

Article 19 of the Canvention, Initial reports

of States parties due tn 1995, Addendum,

United States of America, U.N. Doc. CAT/C/

28/Add.5 (Feb. 9, 2000)

TABLE OF AUTHORITIES — Continued

Comm. against Torture (CAT), Consideration of

Reports Submitted By States Parties under

Article 19 of the Convention, Second periodi

reports of States parties due tn 1999, Adden-

dum, United States of America, U.N. Doc

CAT/C/48/Add.3 (June 29, 2005

Comm. against Torture (CAT), General

ment No. 2: Implementation of article

States parties, U.N. Doc. CAT/C/GC/2 (Jan

24, 2008)..

Comm. against Torture (CAT), Summary Record

of the 624th Meeting on Wednesday, Novem

ber 17, 2004, U.N. Doc. CAT/C/SR.624 (Nov

24, 2004)

Human Rights Comm. (CCPR), General Com

ment No. 20: Replaces general comment 7

concerning prohibition of torture and cruel

treatment or puntshment, (Mar. 10, 1992), in

Compilation of General Comments and Gen-

eral Recommendations Adopted by Human

tights Treaty Bodies, U.N. Doc. HRIY/GEN

1/Rev.6 at 151 (2008)....

Human Rights Comm. (CCPR), General Com

ment No. 31: Nature of the General Legal

Obligation Imposed on States Parties to th

Covenant, U.N. Doc. CCPR/C/21/Rev. 1/Add.13

(May 26, 2004)

TABLE OF AUTHORITIES — Continued

Manfred Nowak, Special Rapporteur on tortur:

and other cruel, inhuman or degrading treat-

ment or punishment, Civil and Political

Rights, Including the Questions of Torture

and Detention, delivered to the Commussion

on Human Rights at the 62nd Session, U.N.

Doc. E/CN.4/2006/6 (Dec. 23, 2005)

Office of the United Nations High Commis-

sioner for Human Rights, Committee against

Torture: Monitoring the prevention of torture

and other cruel, inhuman or degrading treat-

ment or punishment, http://www?2.ohchr.org

english/bodies/cat/ (last visited Mar. 2, 2010)..

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW

OF THE UNITED STATES § 331 cmt. e (1987).

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW

OF THE UNITED STATES § 702(d) and cmt.n

\ 1987 )

U.S. Department of State, 60. U.S. submission

to [ACHR regarding detention and treatment

of detainees (Dec. 16, 2004), www.state.gov

3s//2004/78299.htm

Inited Nations Treaty Collection, Multilateral

Treaties Deposited with the Secretary

General, Convention against Torture and

Other Cruel, Inhuman or Degrading ‘Treat

ment or Punishment, http://treaties.un.org

Pages/ViewDetails. aspx’?srce=UNTSONLINE&

tabid=2&mtdsg_no=lV-9&c hapter=4&lang=

en#1? (last visited Mar. 2, 2010)......... ey #

13,

19, 2

t

TABLE OF AUTHORITIES

Continued

United Nations Treaty Collection, Multilateral

Treaties Deposited with the Secretary-

General, International Covenant on Civil

and Political Rights, http://treaties.un.org

Pages/View Details.aspx?src~-TREATY&mtdsg

no=lV-4&chapter=4&lang=en

Mar. 1, 2010)

(last visited

INTEREST OF AMICI CURIAE:

Manfred Nowak is the U.N. Special Rapporteur

on Torture and Other Cruel, Inhuman and Degrading

[reatment, a position he has held since 2004. He is

Professor of International Human Rights Protection

at the University of Vienna and Director of the

Ludwig Boltzmann Institute of Human Rights. He

has served as Chair of the European Masters Degree

in Human Rights and Democratisation, a program

initiated by the European Commission and jointly

organized by 41 European universities, and has been

ince 1995 a Member of the International Commis

sion of Jurists. Professor Nowak has served in a vari-

related to human rights, including a

» EU Network of Independent Experts

Fundamental Rights (2002-2006), a U.N. Expert

Disappearances (1993-2006), a to the

N High Commissioner on Human Ris on pover

duction (2001-2006), and a Judge at the Human

Rights Chamber for Bosnia-Herzogovina (1996-2003

Professor Nowak has authored more than 400 publi-

ations in the fields of constitutional, administrative

and international law. with a focus on

Counsel of record for all parties receiv:

jays prior to the due date of the intention to file thi

bnef, all counsel have consented to the filing of this bri

the consent letters have been filed with the Clerk of the ¢

with this bmef No counsel for any party authored this bnef

whole or in part, and no person or entity, other than the a:

riae or their counsel, made a monetary co!

n or submission of this bnef

Theo van Boven served as the U.N. Special

Rapporteur on Torture and Other Cruel, Inhuman

and Degrading Treatment from 2001 to 2004. He i:

Professor of Law at the University of Maastricht

Netherlands. Professor van Boven is an Honorary

Commissioner of the International Commission of

Jurists and a Member of the Advisory Council of

International Service for Human Rights (Geneva

Professor van Boven has served in a variety of capaci-

ties related to human rights, including as _ the

Director of the U.N. Division of Human Rights (1977

1982), a Member of the U.N. Committee on the Elim)

nation of Racial Discrimination (1992-1999), the Reg

istrar of the International Criminal Tribunal for the

Former Yugoslavia (1994), Special Rapporteur of the

U.N. Sub-Commission on the Rights to Restitution,

Compensation and Rehabilitation for Victims of Gro

Violations of Human Rights and Fundamental Free

doms (1990-1993), and a Member of the Group of

Independent Experts of the International Labour

Organization to Monitor Sanctions and Other Meas

ures against Apartheid (1990-1993). Professor van

Boven has published many books and articles on the

law of torture and on international human rights law

generally

As current and former U.N. Special Rapporteur

on Torture and Other Cruel, Inhuman and Degrading

freatment, Professors Nowak and van Boven have a

particular interest in promoting observance of the

absolute and non-derogable prohibitions against tor

ture and against the transfer of any person to a coun

?

try where there are substantial grounds for believing

that the person would be in danger of being subjected

to torture. Amici file this bref in support of Maher

Arar s petition for certiorari

SUMMARY OF ARGUMENT

This case involves allegations that officials of the

United States government removed the petitioner,

Maher Arar, from the United States via Jordan to

Syria, for the purpose of having him interrogated

under torture. If his allegations are true, Mr. Arar’s

treatment violated two of the most fundamental!

norms of human rights and humanitarian law: the

absolute prohibition against torture, and the equally

absolute prohibition against refoulement, o1

of a person to face tortur Impunity for

refouleme

Reca

allegation

Oppor'

Mr. Arar

c1IS1ON de!

opportunity to hav nis claims fhe

Aree will Sse ind upport

premises. First, international lav

Out exception prohibit hot!

» face Lort , Second the

uncquivocally undertake!

international prohibition against torture and _ rt

foulement to face torture through its ratification of

relevant international! treaties, its own domestic law:

and its official pronouncements to the international

community

ARGUMENT

INTERNATIONAL LAW UNEQUIVOCALLY

PROHIBITS TORTURE AND REFOULE

MENT TO FACE TORTURE

\. Torture is absolutely prohibited

(1) International Human Rights Law

he prohibition

prohibited |

iS well

aspirational mandate was transformed into a binding

legal obligation through the International Covenant

on Civil and Political Rights (ICCPR), an inte

national treaty which went into effect in 1976, and to

which 165 nations have now committed themselves a:

States Parties.’ Pursuant to ICCPR Article 2. every

State Party is obliged “to respect and to ensure to all

individuals within its territory and subject to its juris

diction” each of the rights recognized in the ICCPR

Among those rights is the Article 7 guarantee that

njlo one shall be subjected to torture.” The absolute

nature of this command is underscored by ICCPR

Article 4, which addresses the human rmghts obliga

of States Parties in the extreme circumstance

“publi * emergency which threaten

Although Arti

6

treaty obligations from which no derogation is ever

allowed.”

Regional human rights treaties echo this prohibi-

tion on torture. The mandate that “[nlo one shall be

subjected to torture” is reiterated in both the [Euro-

pean] Convention for the Protection of Human Rights

and Fundamental Freedoms’ and the American Con-

vention on Human Rights,” and a _ comparable

prohibition of torture appears in the African Charter

on Hluman and Peoples’ Rights.”

The international community’s determination to

put an effective end to torture is further reflected in

the 1984 adoption of the Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment

or Punishment (CAT). That treaty — to which 147

" Id art. 4.2

* Council of Europe, Convention for the Protection of

Human Rights and Fundamental Freedoms art 3, entered into

force Sept 3, 1953, 213 U.N TS. 222

' Organization of American States, American Convention

on Human Rights art 5 2, Nov 22, 1969.0 AS.TS No 36, 1144

U.NTS 123.

Organization of African Umty, Afmcan [Banjul] Charter

on Human and Peoples’ Rights art 5, June 27, 1981, OA U Doc

CAB/LEG/67/3 rev. 5, 1520 UN.T.S 217.

‘* Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, opened for signature Dec

10, 1984, S. Treaty Doc No. 100-20 (1988), 1465 U.N TS. 85

[hereinafter CAT).

nations are now States Parties” — sets forth a series

of specific state obligations designed to prevent tor-

ture and, failing that, to hold every perpetrator ac-

countable and to provide every victim of torture with

an effective means of redress. It requires each State

Party to “take effective legislative, administrative, ju-

dicial or other measures to prevent acts of torture.” “

It reiterates that “[njo exceptional circumstances

whatsoever, whether a state of war or a threat of war,

internal political instability or any other public emer-

gency, may be invoked as a justification of torture.””

It reminds that “{a]n order from a superior officer or a

public authority may not be invoked as a justification

of torture.”" In a provision that will be discussed

further, infra at 13 it declares that “[nJo State Party

shall expel, return (‘refouler’) or extradite a person to

another State where there are substantial grounds

for believing that he would be in danger of being

subjected to torture.”’’ States Parties must “ensure”

that all persons involved in any way in the “custody,

interrogation or treatment of any individual subjected

United Nations Treaty Collection, Multilateral Treaties

Deposited with the Secretary-General, Convention against Tor-

ture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, http.//treaties un org/Pages/View Details.aspx?sre=

UNTSONLINE&tabid=2&mtdsg_no=IV-9&chapter=4&lang=en#12

(last visited Mar. 2, 2010).

CAT, supra note 12, art 2 1

Id art

ia art 2 3.

Id. art. 3

to any form of arrest, detention or imprisonment”

receive “education and information regarding the

prohibition against torture,” and the rules and

instructions regarding their duties must include the

prohibition against torture.'* These requirements ex-

pressly extend to law enforcement personnel — both

civil and military — as well as public officials and

medical personnel.” Each State Party must “keep

under systematic review” its “rules, instructions,

methods and practices” with respect to interrogation,

custody and treatment of persons under arrest, deten-

tion or imprisonment, “with a view to preventing any

cases of torture.” To remove an incentive for torture,

each State Party must “ensure” that no statement

obtained under torture is used as evidence in any

proceeding.

Ts address those situations where torture occurs

despite this panuply of preventive requirements, CAT

requires measures to hold perpetrators accountable

and to provide victims with appropriate redress. Each

State Party must “ensure” that all acts of torture,

attempts to commit torture, and acts constituting

“complicity or participation in torture” are criminal

offenses under its domestic criminal law.” Penalties

“ Id art 10

" Td.

CAT, supra note 12, art 11

“ Id. art. 15. The sole exception is that a statement ob-

tained under torture may be used in proceedings against the

accused torturer, as evidence that the statement was made Id

Id art. 4.1

9

upon conviction of these torture offenses must be

commensurate with the “grave nature” of these of-

fenses.. Whenever a State Party becomes aware that

a person accused of a torture offense is present in its

territory, it must take steps to assure that the person

is either extradited for prosecution elsewhere or

referred for prosecution in its own courts.” If need be,

a State Party must adjust its jurisdictional provisions

so that such a person can be prosecuted in its domes-

tic courts, even when the alleged torture offense

occurred elsewhere, and when neither the accused

nor the victim are nationals of that state.” These

provisions are designed to guarantee that there be no

impunity for torture offenses. They are matched by

provisions guaranteeing a torture victim the opportu-

nity for redress: “Each State Party shall ensure in its

legal system that the victim of an act of torture

obtains redress and has an enforceable right to fair

and adequate compensation, including the means for

as full rehabilitation as possible.”

(2) International Humanitarian Law

International humanitarian law, applicable in

situations of armed conflict, is equally firm in abso-

lutely proscribing any act of torture. Torture is

* Id art.71 Seealso arts 6-9

' CAT, supra note 12, art. 5

10

prohibited by each of the four Geneva Conventions of

1949, which protect, respectively, wounded and sick

combatants on land (GC I), wounded and sick combat-

ants at sea (GC II), prisoners of war (GC III), and

civilians in wartime, including those living in occu-

pied territories (GC IV).” The torture of protected

persons is designated by each of the four Geneva

Conventions as a “grave breach”™

“~

and hence is con-

sidered a war crime. Each State Party is required to

enact any legislation “necessary to provide effective

penal sanctions” for persons committing, or ordering

to be committed, the grave breach of torture,” and

is further required to search for persons accused of

having ordered or committed torture, and either

‘ Geneva Convention for the Amelioration of the Condition

of the Wounded and Sick in Armed Forces 1n the Field art 12,

Aug 12, 1949,6 U.ST 3114, 75 U.N TS. 31 [hereinafter GC I):

Geneva Convention for the Amelioration of the Condition of

Wounded, Sick and Shipwrecked Members of Armed Forces at.

Sea art 12, Aug 12, 1949,6 U.S T 3217, 75 UN.TS 85 [here-

inafter GCIT]; Geneva Convention Relative to the Treatment. of

Pnsoners of War art 17, Aug 12, 1949, 6 US.T 3316, 75

UN.TS 135 [hereinafter GC III]; Geneva Convention Relative

to the Protection of Civilian Persons in Time of War art. 32, Aug

12, 1949.6 UST 3516, 75 U NTS. 287 [hereinafter GC IV]

* See GC I, supra note 27, art. 50; GC II, supra note 27, art

51; GC III, supra note 27, art 130; GC IV, supra note 27, art. 147

' See GC I, supra note 27, art. 49, GC II, supra note 27, art.

9) v7

50; GC III], supra note 27, art. 129; GC IV, supra note 27, art 146

it

prosecute them in its own courts or turn them over to

4 . 3¢

another state for prosecution.”

While the provisions of the Geneva Conventions

discussed above are applicable to armed conflict of an

international character, Common Article 3 — the text

of which appears, identically, as Article 3 of each of

these four Geneva Conventions — proscribes torture

when committed in the context of armed conflict not

of an international character: “Persons taking no

active part in the hostilities, including members of

armed forces who have laid down their arms and

those placed hors de combat by sickness, wounds, de-

tention, or any other cause, shall in all circumstances

be treated humancely.... To this end, the following

acts” — which include “torture” — “are and _ shall

remain prohibited at any time and in any place what-

soever....”" Torture in violation of Common Article 3

is considered a war crime.”

(3) Customary International Law

Customary international law as well as treaty law

absolutely prohibits torture under any circumstance.

See GC I, supra note 27, art 49; GC II, supra note 27, art.

50: GC III, supra note 27, art. 129: GC IV, supra note 27, art 146.

p ]

' GC I, supra note 27, art 3; GC II, supra note 27, art 3;

GC JJ], supra note 27, art. 3: GC IV, supra note 27, art 3

i i

~ See Rome Statute of the Internationa] Criminal Court

art. 8(c)(i), opened for signature July 17, 1998, 2187 UN.TS 90

See also War Crimes Act of 1996, 18 U.S.C. § 2441 ¢f3) and

d(1\A) (2006)

7

bt)

Indeed, the prohibition against torture is recognized

as a jus cogens, or “peremptory,” norm of customary

international law —i.e., a norm “of superior status”™

which is “accepted and recognized by the inter-

national community of States as a whole as a norm

from which no derogation is permitted.”™ As the

Committee against Torture” has written, “Since the

adoption of the Convention against Torture, the abso-

lute and non-derogable character of this prohibition

has become accepted as a matter of customary

international law. The provisions of [CAT] article 2

reinforce this peremptory jus cogens norm against

torture....” Other authorities are in agreement.”

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE

UNITED STATES § 331 cmt. e (1987) (noting peremptory norms

enjoy “superior status” under international law).

“ Vienna Convention on the Law of Treaties art. 53, opened

for sugnature May 23, 1969, 1155 U.N T.S. 331 (defining “per-

emptory norm”).

3.

The Committee against Torture (CAT) 1s a body of 10

independent experts that monitors implementation of the Con-

vention against Torture and Other Crucl, Inhuman or Degrad-

ing Treatment or Punishment by its State parties Office of the

United Nations High Commissioner for Human Rights, Commit-

tee against Torture Monitomng the prevention of torture and

other cruel, inhuman or degrading treatment or punishment,

http’//www2 ohchr.org/english/bodies/cat/ (last visited Mar. 2,

2010)

Comm. against Torture (CAT), General Comment No 2

Implementation. of article 2 by States parties, 41, U.N. Doc

CAT/C/GC/2 (Jan 24, 2008) [hereinafter CAT General Comment

No 2)

' See, e g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS Law

OF THE UNITED STATES § 702(d) and cmt. n (1987); Prosecutor v

(Continued on following page)

Torture is thus proscribed absolutely and without

exception as a matter of not only conventional but

also customary international law.

B. Refoulement to face torture is abso-

lutely prohibited

Just as torture itself is prohibited absolutely and

without exception, so too is refoulement to face tor-

ture. The obligation of non-refoulement is clearly and

unequivocally articulated in Article 3 of the Conven-

tion against Torture: “No State Party shall expel,

return (‘refouler’) or extradite a person to another

State where there are substantial grounds for believ-

ing that he would be in danger of being subjected to

torture.””

But while this obligation is a critical component

of CAT, it did not originate with CAT. Rather, “(t]he

principle of non-refoulement ... is an absolute obliga-

tion deriving from the absolute and non-derogable

nature of the prohibition of torture.”” International

Kunarac & Others, Case No IT-96-23-T & IT-96-23/1-T, Judge-

ment, 7 466 (Feb 22, 2001) (“Torture 1s prohibited under both

conventional and customary international law and it is prohib-

ited both in times of peace and during an armed conflict The

prohibition can be said to constitute a norm of jus cogens ”);

Filartiga v Pera-Irala, 630 F.2d 876, 882 (2d Cir. 1980) (ex-

plaining that the prohibition of torture “has become a part of

customary international law”)

' CAT, supra note 12, art 3

Manfred Nowak, Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment, Civil

(Continued on following page)

14

law has long recognized that the officer or official who

orders torture is as culpable as the soldier or police

officer who commits the act of torture.” “[T)hose exer-

cising superior authority — including public officials -

cannot avoid accountability or escape criminal re-

sponsibility for torture ... committed by subordinates

where they knew or should have known that such

impermissible conduct was occurring, or was likely to

occur, and they failed to take reasonable and neces-

sary preventive measures.”” So too, the official who

sends a person to another state to face torture shares

culpability with whoever in the receiving state orders

or commits the torture.

Accordingly, international human rights treaties

predating CAT are properly construed to prohibit not

only torture itself, but also refoulement to face tor-

ture. The U.N. Human Rights Committee (UN HRC),

established under the ICCPR and charged with moni-

toring and encouraging compliance with that treaty,

has explained that a state’s ICCPR obligation to “re-

spect and ensure” ICCPR rights entails an obligation

and Political Rights, Including the Questions of Torture and

Detention, 4 31(a), delivered to the Commission on Human

Rights at the 62nd Session, U.N. Doc. E/CN 4/2006/6 (Dec. 23,

ZU0D)

See GC I, supra note 27, art 49, GC II, supra note 27, art

90; GC III, supra note 27, art 129, GC IV, supra note 27, art

' CAT General Comment No 2, supra note 36, 4 26

1d

not to send a person to another state where that

person would face a real risk of torture:

[T]he [ICCPR] article 2 obligation that States

Parties respect and ensure the [ICCPR]

rights for all persons in their territory and

all persons under their control entails an

obligation not to extradite, deport, expel or

otherwise remove a person from their terri-

tory, where there are substantial grounds for

believing that there is a real risk of

irreparable harm, such as that contemplated

by articles 6 [right to life] and 7 [prohibition

of torture] of the [ICCPR], either in the

country to which removal is to be effected or

in any country to which the person may

subsequently be removed.”

Thus, the UN HRC has concluded that “States parties

must not expose individuals to the danger of torture

upon return to another country by way of their

extradition, expulsion or refoulement.””

Human Rights Comm (CCPR), General Comment No. 31

Nature of the General Legal Obligation Imposed on States

qj a f

Parties to the Covenant, 412, UN Doc CCPR/C/21/Rev.1

Add 13 (May 26, 2004).

Human Rights Comm (CCPR), General Comment No 20

Replaces general comment 7 concerning prohibition of torture

[ §&

and cruel treatment or punishment, {| 9 (Mar. 10, 1992), in Com

A

pilation of General Comments and General Recommendations

Adopted by Human Rights Treaty Bodies, U.N. Doc HRI/GEN/

l/Rev.6 at 151 (2003)

16

Similarly, the European Court of Human Rights

has construed article 3 of the [European] Convention

for the Protection of Human Rights and Fundamental

Freedoms as encompassing an obligation of non-

refoulement. In Soering v. United Kingdom,” the

European Court of Human Rights held that article 3’s

“absolute prohibition of torture”*’ proscribed as well

the extradition of a fugitive to another State “where

there were substantial grounds for believing that he

would be in danger of being subjected to torture.””

Violation of the obligation of non-refoulement would

thus lead to “liability incurred by the extraditing

[State Party] by reason of its having taken action

which has as a direct consequence the exposure of an

individual to proscribed ill-treatment.”" The Euro

pean Court reaffirmed this ruling in the context of an

attempted deportation for reasons of national security

in Chahal v. United Kingdom:*

The Court is well aware of the immense

difficulties faced by States in modern times

in protecting their communities from terror

ist violence. However, even in these circum

stances, the Convention prohibits in absolute

terms torture or inhuman or degrading

Soertng vu United Kingdom l Fur. Ct HR er A

(1989)

Id. 4 88

Id. q| 88. See also 5 | 9]

Id. 4 91

Chahalv United Kingdom, 23 Fur Ct HR 41 996

|'/

treatment or punishment, irrespective of the

victim’s conduct.... Article 3 (art. 3) makes

no provision for exceptions and no derogation

from it is permissible... even in the event of

a public emergency threatening the life of

the nation. ...

+

)

The prohibition provided by Article 3 (art. 3)

against ill-treatment is equally absolute in

expulsion cases. Thus, whenever substantial

grounds have been shown for believing that

an individual would face a real risk of being

subjected to treatment contrary to Article 3

(art. 3) if removed to another State, the

responsibility of the Contracting State to

safeguard him or her against such treatment

is engaged in the event of expulsion.... In

these circumstances, the activities of the in

dividual in question, however undesirable or

dangerous, cannot be a material considera

‘ 49

tion.

Accordingly, the non-refoulement principle is an abso-

lute obligation under the European Convention's

prohibition of torture

The non-refoulement principle is also an absolute

principle of customary international law. As _ the

Committee against Torture has emphasized, “non-

refoulement must be recognized as a peremptory

—

)

norm under international law, and not merely as a

principle enshrined in article 3 of the Convention.”

Il. THE UNITED STATES HAS UNDER-

TAKEN TO BE BOUND BY THE INTER-

NATIONAZ PROHIBITION OF TORTURE

AND REFOULEMENT TO FACE TORTURE

The United States has undertaken as a matter of

both international and domestic law to be bound by

the absolute prohibition of torture as well as the

absolute principle of non-refoulement. It has done so

by ratifying relevant treaties, by enacting domesti

law relating to torture and non-refoulement, and by

making unequivocal pronouncements on the inte

national stage.

The United States is a State Party to a host of

treaties that categorically and without exception ban

torture. \s early as 1948, the United States joined

with other nations of the world in adopting the

Universal Declaration of Human Rights,” including

its article 5 mandate that “|nlo one shall be subjected

to torture.” In 1955, the United States ratified the

four Geneva Conventions,” each of which prohibits

torture and requires that it be prosecuted as a wal

Comm against ‘Jorture (CAI Summar Record of the

2) Ath Mey ting Ori Wi dru sda‘ November 17 2OU4 q ry U N

Doc CAT/C/SR 624 (Nov 24. 2004

See H R Con Re 185, 105th Cong 1998) (enacted

Set upra note Z

i,

crime.” In 1992, the United States became a State

Party to the ICCPR,” which requires States Parties

“to respect and to ensure’ the rights recognized in the

ICCPR, including the absolute and non-derogable

prohibition of torture.” And in 1994, the United

States became a State Party to the Convention

against Torture, undertaking to comply with the pan

oply of obligations which that treaty imposes on

States Parties so as to prevent, punish and provide

redress for torture

The United States has lrkewise consented to be

bound by the principle of non-refoulement As noted

above, that principle must be understood to be an

See GC |! upra not 27, arts. 12, 49-50; GC II, supra note

27, arts 12, 50-51; GC III, supra note 27, arts 17, 129-30; CC

[V, supra note 27, arts. 32, 146-47

' See United Nations Treaty Collection, Multilateral Treaties

Deposited with the Secretary-General, International Covenant

on Civil and Political Rights, http.//treaties.un org/Pags

View Details.aspx?sre=-TREATY&mtdsg no=IV-4&chapter=4&lang

en (last visited Mar. 1, 2010)

ICCPR, supra note 3, art 2 See also art 4

See United Nations Treaty Collection, Multilateral Treaties

Deposited with the Secretary-General, Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, http://treaties un.org/Pages/ViewDetails aspx?src

UNTSONLINE&tabid=2&mtdsg_no=IV-9&chapter=4&lang=en#12

(last visited Mar. 2, 2010) While the US ratified CAT subject

to two reservations one regarding the definition of cruel, in

human or degrading treatment or punishment and another

exercising the CAT art 30(2) option to decline agreement with

the arbitration provision of CAT art. 30(1) neither of these

reservations negates the treaty oblgation to prevent, punish

und provide redre for torture /a

20

inherent component of the prohibition of torture;

hence, the United States’ ratification of treaties ban-

ning torture implies a treaty obligation to ahide by

the principle of non-refoulement. But lest there be

any doubt, the United States has unequivocally bound

itself to comply with the non-refoulement principle

through its ratification of the Convention against

Torture,” article 3 of which commands that “[n]o

State Party shall expel, return (‘refouler’) or extradite

a person to another State where there are substantial

grounds for believing that he would be in danger of

being subjected to torture.”

58

The domestic law of the United States reflects

these treaty obligations in a number of respects.

Presidential Executive Order 13,491 on “Ensuring

Lawful Interrogations” orders:

[Ijndividuals detained in any armed conflict

shall in all circumstances be treated

humanely and shall not be subjected to ...

torture ... whenever such individuals are in

the custody or under the effective control of

an officer, employee, or other agent of the

United States Government or detained with-

in a facility owned, operated, or controlled

by a department or agency of the United

States.”

See id

' CAT, supra note 12, art. 3

Exec Order No 13,491, § 3(a) (Jan 22, 2009), 74 Fed

Reg 4,893 (Jan 27, 2009) [hereinafter Exec. Order No. 13,491]

21

The War Crimes Act of 1996 criminalizes grave

breaches of the Geneva Conventions and serious vio-

lations of Common Article 3, including torture.” A

federal anti-torture statute permits the United States

to prosecute acts of torture outside the United States

>

as well as attempts and conspiracies to commit such

torture, whenever the alleged offender either is a U.S.

national or is present in the United States.” The

Torture Victim Protection Act provides a civil remedy

for victims of torture.”

Specifically with respect to the obligation of non-

refoulement, the Foreign Affairs Reform and Re-

structuring Act (FARRA) declares:

6

War Crimes /ct of 1996, 18 USC. § 2441 (2006)

See 18 US.C §§ 2340-2340A (2006) The United States

has represented internationally that torture offenses committed

within the United States can be prosecuted under pre-existing

domestic law See Comm against Torture (CAT), Consideration

of Reports Submitted By States Parties under Article 19 of the

Convention, Second periodic reports of States parties due in

1999, Addendum, United States of America, 416, U.N Doc.

CAT/C/48/Add.3 (June 29, 2005) [hereinafter Second periodic

report of the U.S to CAT] (“{A]ny act of torture falling within

the Torture Convention definition would in fact be crmunally

prosecutable in every jurisdiction within the United States

Such acts may be prosecuted, for example, as assault, battery or

mayhem in cases of physical injury; as homicide, murder or

manslaughter, when a killing results: as kidnapping, false

imprisonment or abduction where an unlawful detention is

concerned; as rape, sodomy, or molestation; or as part of an at-

tempt, or a conspiracy, an act of racketeering, or a cmmuinal

violation of an individual’s civil mghts.”)

Torture Vichm Protection Act, 28 USC §&§ 1350 note (2006).

It shall be the policy of the United States not

to expel, extradite, or otherwise effect the

involuntary return of any person to a country

in which there are substantial grounds for

believing the person would be in danger

of being subjected to torture, regardless of

whether the person is physically present in

the United States.”

To effectuate this policy, FARRA required the promul-

gation of regulations consistent with the United

States’ obligations under the CAT non-refoulement

provision.” In a similar vein, Presidential Executive

Order 13,491 ordered a review of U.S. practices with

respect to the transfer of individuals to other states

“to ensure that such practices comply with the

domestic laws, international obligations, and policies

of the United States and do not result in the transfer

of individuals to other nations to face torture... ..

The United States has repeatedly reaffirmed to

the international community its commitment to be

bound by the prohibitions on torture and refoulement

to face torture. On September 23, 2009, President

Barack Obama appeared before the United Nations

General Assembly and reaffirmed the United States’

commitment to the prohibition of torture: “On my

first day in office, I prohibited — without exception or

Fore:en Affairs Reform and Restructuring Act of 1998,

Pub. L No 105-277, Div G., Title XXII, § 2242(a), 112 Stat

2681-822. codified as 8 U.S.C. § 1231 note (2006)

™ Seeid § 2242(b)

Kxec Order No 13,491, supra note 59, § 5(e)01

23

equivocation — the use of torture by the United States

of America... . Every nation must know: America will

live its values, and we will lead by example.””

Earlier, in 2006, the United States reiterated to the

Committee against Torture its opposition to torture

and its commitment to the non-refoulement principle:

(T]he United States is unequivocally opposed

to the use and practice of torture. No cir-

cumstance whatsoever, including war, the

threat of war, internal political instability,

public emergency, or an order from a supe-

rior officer or public authority, may be in-

voked as a justification for or defense to

committing torture. This is a longstanding

commitment of the United States, repeatedly

reaffirmed at the highest levels of the U.S.

government.”

In a 2004 submission to the Inter-American Com

mission on Human Rights, the United States

represented:

(The President] has made clear that the

United States stands against and will not

tolerate torture and that the United States

remains committed to complying with its

obligations under the Convention Against

* Barack Obama, President of the US, Responsibility for

Our Common Future, Address to the United Nations General

Assembly (Sept 23, 2009) (transcript available at http://www.un

org/ga/64/generaldebate/pdf/US_en pdf) (last visited Mar 2, 2010

* Second periodic report of the US. to CAT, supra note 6]

24

Torture and Other Cruel, Inhuman or De-

grading Treatment or Punishment. Consis-

tent with that treaty, the United States does

not expel, return or extradite individuals to

countries where the United States believes it

is likely that they will be tortured.”

In both its Initial Report to the Committee against

Torture, and again in its Second Periodic Report to

that Committee, the United States affirmed that

it “recognize[d] its obligation not to ‘expel, return

(‘refouler’) or extradite a person to another state

where there are substantial grounds for believing

that he would be in danger of being subjected to

969

torture’.

CONCLUSION

Under both conventional and customary inter-

national law, the prohibition of torture is absolute

and non-derogable. So, too, is the obligation to respect

the principle of non-refoulement. The United States

has undertaken to be bound by these international

US. Department of State, 60 US submission to [ACHR

regarding detention and treatment of detainees (Dec. 16, 2004),

www state gov/s/1/2004/78299 htm

' Comm. against Torture (CAT), Consideration of Reports

Submitted By States Partws under Article 19 of the Convention,

Initial reports of States partis due in 1995, Addendum, United

States of Amerwa, J 156, UN. Doc CAT/C/28/Add.5 (Feb. 9,

2000): Second periodic report of the US to CAT, supra note 61,

7 30

29

obligations through its ratification of relevant trea-

ties, its own domestic law, and its repeated pro-

nouncements to the international community.

The petitioner in this case has alleged that,

notwithstanding these obligations, officials of the

United States government removed him from the

United States via Jordan to Syria for the purpose of

having him interrogated under torture. If true, these

allegations would represent a most grievous violation

of the United States’ obligations to foreswear com-

plicity in torture and refoulement to face torture.

Because of the gravity of these allegations and the

critical importance of the obligations alleged to have

been violated, amici respectfully urge this Court to

grant certiorari to review the decision below denying

petitioner the opportunity to have his claims heard on

the merits.

Respectfully submitted,

BRIDGET ARIMOND

Counsel of Record

CENTER FOR INTERNATIONAL

HUMAN RIGHTS

NORTHWESTERN UNIVERSITY

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-8579

b-arimond@law.northwestern.edu

Attorney for Amici Curiae