In a previous post, I asked whether the Obama administration was likely to prosecute Bush administration officials for authorizing waterboarding after Holder announced that he believed that waterboarding was torture. I concluded that the "chances of prosecution remain slim." Obama has said that he is reluctant to launch prosecutions and he has considerable discretion to prosecute or not. I was talking about domestic law, but others apparently thought I was talking about international law as well, and have claimed that international law changes the story.
Attention has focused on the Convention Against Torture, which provides:
7(1) The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
(2) These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall be no less stringent than those which apply in the cases referred to in article 5, paragraph 1.
Kevin Jon Heller offers a lucid analysis here. For the sake of argument, let us assume that international law does in fact require some kind of prosecutorial activity. What of it?
Begin by observing that we have two substantive laws that, for present purposes, have equal standing: "you may not torture" and "you may not decline to prosecute torturers." The first law is domestic (as well as international), the second law is international. People who agree that the Obama administration has no domestic legal obligation to enforce the first law should concede what is obvious to nearly everyone: not all laws are enforced. Putting aside private rights of action, domestic laws are enforced only when there is political motivation to enforce them.
If not all domestic laws are enforced, why should we think that the second law, the international law, will be enforced? Because it is international rather than domestic? In fact, just as in the domestic setting, some international laws are enforced and some are not. While in the case of domestic (federal law), the executive branch decides which laws are enforced and which are not enforced, in the case of international law the decision lies elsewhere, with the relevant international actors, in this case with foreign states. The enforcement of international law, just like the enforcement of domestic law, depends on political will and interest. Foreign states are free to press or not press claims they have as a result of U.S. violations of the torture convention.
The question, then, is whether foreign states are likely to accuse the Obama administration of violating section 7 of the CAT, and to pressure it to come into compliance with the CAT, if it refuses to prosecute. The answer is probably no.
Foreign states have no more incentive to press their Convention Against Torture claims against the Obama administration than the Obama administration has to press domestic anti-torture or war crimes charges against Bush administration officials. International law gives them only self-help remedies for U.S. violations, and few states will want to expend the diplomatic resources on an issue about which they care relatively little—certainly compared to all the other areas of disagreement, such as climate, trade, energy, and security—and about which they are so unlikely to obtain a receptive hearing from the United States. Are foreign states likely to try to embarrass the incoming Obama administration by accusing it of violating section 7 of the CAT? It seems safe to conclude that if the Obama administration chooses not to prosecute and thus to violate CAT, other states will, in essence, "settle" their claims for a price of zero.
Foreign states are in a difficult position, akin to the difficult position of the Obama administration. Just as domestic prosecutions risk exposing the complicity of Democratic politicians in the Bush administration's interrogation policies, foreign international law claims would risk a similar sort of blowback, exposing and highlighting the routine CAT violations of foreign states. I am not just referring to European complicity in CIA renditions. Putting aside the European countries and a handful of other countries, virtually every state in the world engages in systematic torture of political opponents, suspected criminals, insurgents, and many others. Yet the legal sanctions being imposed on Russia, China, Indonesia, Egypt, and India are zilch. These facts strongly suggest that states do not regard routine CAT violations by other states, to say nothing of section 7 violations, as sufficiently important to warrant the diplomatic resources that would be necessary to remedy them. For this reason, if Obama has strong domestic political reasons for refraining from prosecuting Bush administration waterboarders, international law will not change his mind.
In a later post, I will discuss the possibility that foreign states will prosecute former Bush administration officials who travel abroad.