Torture and International Law

The many recent discussions about the United States policy regarding torture of detainees and its relation to international law got me to thinking about what, exactly, is international law. I googled the World Court in the Hague, and studied their history to get a better understanding of who writes international law, who adjudicates it, what penalties exist for the violators and who enforces it. The International Court web site explains the first two topics pretty well, but the other two are a little harder to figure out. International law comes from conventions and treaties between nations, as well as established customs, and, to a limited extent prior court decisions. As far as I can tell, it's up to the UN to enforce the court's decisions with the use of sanctions as well as military intervention. The latter, of course, is seldom used.

A letter to the editor of the LA times by Professor Carl Tobias of the University of Richmond prodded me to send the professor a response. Rather than paraphrase it, I will just copy the entire letter below:

Professor Tobias,

I read with great interest your letter to the editor of the LA Times in response to the editorial entitled Tortured Logic.

I take issue, however, with your concluding sentence, “Congress must uphold the rule of law and remember that other countries will subject Americans to the treatment that Congress allows.” If I misunderstand it, perhaps you can enlighten me.

It seems to me that most of the U.S. and international law deals with our treatment of the uniformed soldiers of another country with which we are at war. I know that the Supreme court does not accept this narrow definition, but the court has erred before. Today we face enemies who are not agents of a country. Their treatment of the people they capture does not in any way conform to the Geneva Convention, or any other conventions or treaties. They wreak unspeakable tortures on their captives, and then they behead them. In other words, they do not accept nor feel bound by any of the treaties or conventions that comprise the body of international law. These men are thugs and bandits who have no respect for the lives of their enemies. This is no army of uniformed soldiers attacking another country’s army in accordance with mutually-agreed rules. And they do not deserve the protection that would be offered by the very laws that they disavow.

Furthermore, the last part of the statement does not correspond to what I have observed in my lifetime, e.g.:
· In World War 2, neither Germany nor Japan treated American prisoners in any way that the American Congress allowed.
· North Korea never treated American prisoners in accordance with any laws passed by our Congress.
· North Viet Nam did not treat American prisoners in accordance with the Geneva Convention, or in any manner allowed by our Congress

I firmly believe that, as a Nation, we should try to take the high moral ground. The adage that “two wrongs do not make a right,” certainly applies in a situation where the parties involved have a mutual level of respect for human life and dignity.

But we do not have that situation today. We are not involved in a conflict that involves two or more countries that have mutually agreed to be governed by specific conventions or treaties. Any country that will “subject Americans to the treatment that Congress allows,” probably is not nor will it be at war with us. Rather, it will most likely turn to the International Court for a decision on any conflict.

I am especially discouraged by those who expend energy criticizing our government for the techniques (such as moderate deprivation of food, sleep, etc.) that we use to get information from captives. The energy should be expended in doing all we can to end the vicious and brutal torture and killing perpetrated by the terrorists who have no respect for any law that we subscribe to.
If our boxer enters the ring with one hand tied behind his back, he will lose the fight.

Sincerely,

My opinion is shared, and expressed in more detail, in the link I have provided to a column by David Rivkin Jr. and Lee Casey.