Civil liability of Bush, Cheney, et al. for torture, cruel, inhuman, and degrading treatment and forced disappearance.

• Author: Paust, Jordan J.

As documented in this article, treaty-based and customary international law regarding forced disappearance, human rights, and the laws of war provides rights to compensation and forms of reparation. In particular, the 1949 Geneva Conventions expressly recognize private rights and contemplate compensation in courts of law. Within the U.S., several statutes execute relevant international law for civil sanction purposes and several federal and state court cases have recognized personal liability. The article also demonstrates why there should be no immunity for conduct in violation of international law, why substitution of the U.S. for individual defendants should not occur, and why relevant international law has primacy over the Military Commissions Act.

1. INTRODUCTION

   It is well beyond reasonable doubt that during an admitted "program" of serial criminality designed to use secret detention and coercive interrogation of human beings from the waning months of 2001 until 2009, former President Bush, former Vice President Cheney, Alberto Gonzales, and several other members of the Bush Administration authorized, ordered, and/or abetted the forced disappearance of persons (a crime against humanity and war crime), other war crimes (including torture, cruel, inhuman, and degrading treatment of human beings and the transfer of non-prisoners of war out of occupied territory), and other serious international crimes implicating universal jurisdiction and a universal responsibility aut dedere aut judicare (i.e., to hand over or to initiate prosecution of those reasonably accused). (1)

   Types of relevant criminal responsibility include: (1) direct perpetration of an international crime by authorizing or ordering its commission; (2) complicity with respect to international crime where an individual was aware that his or her conduct can or will facilitate conduct of a direct perpetrator; and (3) dereliction of duty with respect to those who exercised de facto or de jure authority as a leader and refused or failed to take reasonable corrective action. (2)

   Prosecution of several lawyers within the Bush Administration for complicity would be on firm ground, especially with respect to those who wrote memoranda that facilitated the common, unifying plan devised by an inner circle to use torture and other forms of coercive interrogation. As noted above, criminal complicity can occur when a person is aware that his or her conduct (e.g., writing a memo stating that waterboarding is not torture) can or will assist or facilitate conduct of a direct perpetrator. The person who aids and abets need not know that the conduct of the direct perpetrator is criminal or, for example, whether the conduct constitutes "torture" or cruel or inhuman treatment. It suffices that an accused was aware of the relevant factual circumstances, and even a direct perpetrator need not have known that his or her act amounted to an inhuman act either in the legal or moral sense. Furthermore, all acts of assistance, either by words or acts and omissions, that lend encouragement or support will suffice if the accused knows or is aware that such conduct can or will facilitate the use of an illegal tactic or form of treatment.

   Are such former officials who are reasonably accused also subject to civil liability for violations of treaty-based and customary international law? The short answer is yes.

2. THE DUTY TO PROVIDE AND THE RIGHT TO FAIR COMPENSATION

   A vast array of international laws assures the right to fair compensation for secret detention and coercive interrogation. For the victims of torture, a mandatory duty to provide fair compensation, including means for rehabilitation, is set forth in Article 14 of the Convention Against Torture:

   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. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation. (3) Other treaty-based and customary duties of states exist regarding rights of individuals to an effective remedy, access to courts, and nonimmunity with respect to torture, cruel, inhuman, and degrading treatment. Prominent among these are the right to a remedy, access to courts, and nonimmunity that are based in Articles 2(3)(a) and 14(1) of the International Covenant on Civil and Political Rights (ICCPR), (4) as emphasized in the General Comments of the Human Rights Committee that operates under the auspices of the ICCPR. (5) Article 50 of the ICCPR further mandates that all of "[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions." (6) This provision assures that rights and duties under the treaty apply with respect to decisions and conduct in Washington, D.C. as well as in judicial proceedings within the U.S. in which claims to fair compensation proceed.

   The rights to an effective remedy and access to courts are also reflected in Article 8 of the Universal Declaration of Human Rights, (7) which mirrors patterns of generally shared expectations concerning customary roots of the right to an effective remedy in domestic courts for violations of human rights and various other rights under international law. (8) As part of human rights law, rights to an effective remedy and access to courts are also necessarily part of U.N. Charter-based obligations of all members of the U.N. to assure "universal respect for, and observance of, human rights...." (9)

   Undoubtedly for this and related reasons, the U.N. General Assembly emphasized in 2007 and 2008 that "national legal systems must ensure that victims of torture and other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate social and medical rehabilitation." (10) Earlier, in the Basic Principles and Guidelines on the Right to a Remedy and Reparation, (11) the General Assembly provided detailed information concerning the right to "equal and effective access to justice" (12) and to an effective judicial remedy for victims of violations of human rights law, (13) as well as the type of "[a]dequate, effective and prompt reparation" and "compensation, rehabilitation, [and] satisfaction" required by international law. (14)

   With respect to the laws of war in particular, Article 3 of the 1907 Hague Convention (No. IV) (15) expressly recognizes that a belligerent that violates the Convention "shall... be liable to pay compensation." (16) The 1949 Geneva Conventions expressly require that no state "shall be allowed to absolve itself or any other.., of any liability incurred by itself or by another.., in respect of" grave breaches of the Convention. (17) The fact that no state can absolve itself or another of liability is consistent with patterns of expectation that liability for war crimes must continue despite an attempt by a state to deny civil sanctions. The obligation to pay compensation also serves to ensure that no state recognizes immunity with respect to such liability. More generally, the Geneva Conventions expressly recognize and provide various private rights and contemplate compensation in courts of law. (18) In fact, private judicial remedies predate the Conventions and have existed more generally with respect to violations of treaty-based and customary laws of war since the beginning of the U.S. (19) Article 91 of Protocol I to the Geneva Conventions (20) reaffirms widespread expectations with respect to state responsibility for war crimes and the propriety of compensation as a sanction response. Article 91 stresses that a party to an international armed conflict that "violates the provisions of the [Geneva] Conventions or of this Protocol shall.., be liable to pay compensation." (21) In 1990, the U.N. Security Council reaffirmed such forms of responsibility with respect to Iraqi violations of the Geneva Conventions. Iraq, the Council declared, is "liable for any loss, damage or injury arising in regard to ... [certain states] and their nationals" (22) and is "liable under the Convention . . . [for] grave breaches committed by it, as are individuals...." (23)

   More recently, the practice of providing private judicial remedies for violations of the laws of war has been further effectuated in a growing number of modern cases that have recognized personal liability as well as the liability of private juridic persons. (24) It is important in this regard that there has been unswerving recognition in every relevant judicial opinion since the beginning of the U.S. that the President and all persons within the Executive branch are bound by the laws of war. (25) Since the President has no authority to violate international law, authorizations to do so are ultra vires and the conduct of compliant subordinates remains unlawful. (26)

   With respect to the customary and jus cogens crime against humanity and violation of the laws of war known as forced disappearance or secret detention, (27) which was also engaged in as part of an admitted Bush program, (28) it is significant that the International Convention for the Protection of All Persons From Enforced Disappearance (29) affirms expectations of the international community that each state party "shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation" and that reparation "covers material and moral damages and, where appropriate, other forms of reparation such as: (a) [r]estitution; (b) [r]ehabilitation; (c) [s]atisfaction, including restoration of dignity and reputation; [and] (d) [g]uarantees of non-repetition." (30)

   Within the Americas, the Inter-American Court of Human Rights awarded compensation to the family of a victim of forced...