Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-25T07:20:40.119Z Has data issue: false hasContentIssue false
  • English
  • Français

Holding the Center of the Law of Armed Conflict

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman
Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. As you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Editorial Comment
Information
American Journal of International Law , Volume 100 , Issue 4 , October 2006 , pp. 852 - 860
Copyright
Copyright © American Society of International Law 2006

References

1 But see W. Michael, Reisman & Robert, D. Sloane, The Incident at Cavalese and Strategic Compensation, 94 AJIL 505 (2000).Google Scholar

2 Geneva Convention Relative to the Treatment of Prisoners of War, Art. 13, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; id., Art. 3; International Covenant on Civil and Political Rights, Art. 7, Dec. 16, 1966, S. EXEC. DOC. NO. E, 95th Cong., 2dSess. (1978), 999 UNTS 171; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. TREATY DOC. NO. 100-20 (1988), 1465 UNTS 85.

3 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).

4 The reservations, declarations, and understandings are narrower than the Convention. They state in relevant part:

  • I. The Senate’s advice and consent is subject to the following reservations:

    (1) That the United States considers itself bound by the obligation under Article 16 to prevent “cruel, inhuman or degrading treatment or punishment,” only insofar as the term “cruel, inhuman or degrading treatment or punishment” 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.…

  • II. The Senate’s advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

    (1) (a) That with reference to Article 1, 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.…

    (2) That the United States understands the phrase, “where there are substantial grounds for believing that he would be in danger of being subjected to torture,” as used in Article 3 of the Convention, to mean “if it is more likely than not that he would be tortured.”…

  • III. The Senate’s advice and consent is subject to the following declarations:

    (1) That the United States declares that the provisions of Articles 1 through 16 of the Convention ate not self-executing.

136 Cong. Rec. S17.486, S17.486 (1990); see also Marian Nash, Leich, Contemporary Practice of the United States, 85 AJIL 335, 336–37 (1991).Google Scholar

5 Incidentally, the national debate as to whether the president, as commander in chief in wartime, has an inherent “constitutional” power to order subordinates to torture in self-defense is irrelevant to an international inquiry. International law applies to all agencies and organs of a state and violations of international law by any organ or agency of a state will engage that state’s responsibility; insofar as international law provides for individual responsibility, that responsibility now tracks up and down the chain of command that has ordered a violation of international law. Contrary national legal commands do not provide a defense. National law may purport to authorize some agencies or instrumentalities of the state to engage in torture or other acts prohibited by international law, but even the most absolute of rulers cannot discharge himself or his agents from the application of international law.

6 See President George, W. Bush, The President’s News Conference (Oct. 11, 2006)Google Scholar, 42 Weekly Comp. Pres. Doc. 1782 (Oct. 16, 2006), available at <http://www.whitehouse.gov/news/releases/2006/10/20061011-5.html; President George, W. Bush, Remarks on the Signing of the Military Commissions Act of 2006 (Oct. 17, 2006),Google Scholar id. at 1831 (Oct. 23, 2006), available at <http://www.whitehouse.gov/news/releases/2006/10/20061017-l.html.

7 See supra note 3.

8 Av. Sec’y of State for the Home Dep’t (No.2), [2005] UKHL71, [2006] 2A.C.221,available at LEXIS, United Kingdom Library, Case Law File, available at <http://www.publications.parliament.uk/pa/ld200506/Idjudgmt/jd051208/aand.pdf. The House of Lords unanimously held evidence obtained from torture to be inadmissible in the courts of the United Kingdom. Yet the Lords were divided four to three on the relevant test. The minority view, articulated by Lord Bingham, argued that courts must exclude evidence if there exists a “real risk” that the evidence may have been obtained by torture. Id., para. 56. But the majority agreed with Lord Roger’s standard:

When everything possible has been done, it may turn out that the matter is left in doubt and that, using their expertise, SIAC cannot be satisfied on the balance of probabilities that the statement in question has been obtained by torture. If so, in my view, SIAC can look at the statement but should bear its doubtful origins in mind when evaluating it.

Id., para. 145. See, in this regard, Cherie, Booth, Commentary, Fin. Times, Mar. 2, 2006.Google Scholar

9 Michael, Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations 245, 251–68 (4th ed. 2006).Google Scholar But see his reconsideration in Michael, Walzer, Arguing about War 33–50 (2004).Google Scholar

10 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 280.

11 Rome Statute of the International Criminal Court, Arts. 7, 8, July 17, 1998, 2187 UNTS 3, available at <http://www.un.Org/law/icc/statute/99_corr/2.htm.

12 See, e.g., Armed Activities on the Territory of the Congo (New Application: 2002) (Dem Rep. Congo v. Rwanda), Jurisdiction and Admissibility (Int’l Ct. Justice Feb. 3, 2006); Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) (Int’l Ct. Justice Dec. 19, 2005); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ REP. 136 (July 9).

13 Michael, Bothe, Karl Josef, Partsch, & Waldemar, A. Solf, New Rules for Victims of Armed Conflicts 244 (1982).Google Scholar

14 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 37(1), June 8, 1977, 1125 UNTS 3, 13 ILM 1391 (entered into force Dec. 7, 1979).

15 For arguments against the compromises reached in Protocol I, see Abraham, D. Sofaer, The Rationale for the United States Decision, 82 AJIL 784 (1988)Google Scholar; for responses (in particular concerning Article 44), see George, H. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AJIL 1, 7–10, 18 (1991)Google Scholar; Theodor, Meron, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 AJIL 678, 682–84 (1994)Google Scholar; George, H. Aldrich, The Laws of War on Land, 94 AJIL 42, 46–48 (2000).Google Scholar

16 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226 (July 8).

17 Id, para. 97.