The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has had the force of international law since mid-1987. The U.S. joined the club by signing it in 1988. The treaty received ratification in 1994. This treaty is, under Article VI paragraph 2 of the U.S. Constitution, the “supreme Law of the Land.”
Convention (Article 1) prohibits torture, defined as:
…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The treaty grants NO exceptions to the prohibition on Torture…not even under the “Ticking Time Bomb” scenario (from Article II):
(2) No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
One of my disappointments with the Obama administration has been a lack of prosecution for those who justified, authorized, and undertook torture. The lack of action wasn’t unexpected…just disappointing.
So we have alleged criminals living free: the “deciders” George W. Bush (who has, remarkably, confessed to authorizing waterboarding in his autobiography) and Dick Cheney, the “justifiers” like Professor John Yoo and Judge Jay Bybee, and those who actually administered torture.
There may never be domestic prosecutions of these alleged criminals, but at least for the highest profile of the alleged criminals, there is now more to fear while traveling outside the U.S. than being hit in the face with a shoe (via Reuters):
Former President George W. Bush has canceled a visit to Switzerland, where he was to address a Jewish charity gala, due to the risk of legal action against him for alleged torture, rights groups said on Saturday.
Bush was to be the keynote speaker at Keren Hayesod’s annual dinner on February 12 in Geneva. But pressure has been building on the Swiss government to arrest him and open a criminal investigation if he enters the Alpine country.
Criminal complaints against Bush alleging torture have been lodged in Geneva, court officials say.
The fact is Switzerland has no choice but to consider prosecution. As a signatory to the Convention, Switzerland is bound by Article 5:
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.
So George Bush cannot travel much outside of the U.S., except, apparently, to Canada…seems like a pretty trivial punishment for committing crimes against humanity.
The punishment could be much worse. As John McCain pointed out in 2007:
…some Japanese were tried and hanged for torturing American prisoners during World War II with techniques that included waterboarding.
“There should be little doubt from American history that we consider [waterboarding] as torture otherwise we wouldn’t have tried and convicted Japanese for doing that same thing to Americans….”