# Amicus Curiae Brief — Arar v. Ashcroft

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1562%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 560 U.S. 978

## Text

— ‘.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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1562%3A09. Public record. Not legal advice.