Where torture or other ill-treatment, summary or arbitrary killing, or enforced disappearance, are revealed, states must ensure that "those responsible are brought to justice".17 This includes not only those who directly perpetrated the acts, but also those who encouraged, ordered or tolerated them.18 States may not relieve those responsible for such violations from personal responsibility through general amnesties, legal immunities or indemnities or other similar measures. Impediments such as immunities arising from official statutes, defences of obedience to superior orders or unreasonably short periods of statutory limitation must accordingly be removed.19
The UNCAT specifically requires that each state ensure that "all acts of torture" (including at least all acts covered by the definition in article 1 of the UNCAT), any attempt to commit torture, and any "act by any person which constitutes complicity or participation in torture" are offences under its criminal law.20 Any state where a person alleged to have committed any of these offences (anywhere in the world) is found must "submit the case to its competent authorities for the purpose of prosecution" unless it extradites him or her to another state for prosecution.21 The UNCAT expressly precludes defences such as "exceptional circumstances", superior orders, or public authority from ever being capable of being invoked in justification of acts of torture.22
Similar obligations are found under the Geneva Conventions and under customary international law.23
Removing obstacles to accountability
The new administration will need to undertake a thorough and transparent review of all legal and practical obstacles to bringing perpetrators of human rights and humanitarian law violations to justice and allowing victims effective access to remedy. However some obstacles are already obvious and should be removed immediately. Among other things, the new US administration should:
Revoke the 20 July 2007 Executive Order on Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency. This order purports to deem the CIA program of secret detention and interrogation to comply with certain Geneva Conventions provisions, subject to some limited conditions, apparently in order to avoid individual criminal responsibility for those engaged in it. This should be replaced with orders necessary to make it clear that no-one acting for or on behalf of the USA is authorised, under any circumstances, to perpetrate, encourage, order, attempt, be complicit or otherwise participate in enforced disappearance, secret detention, or torture or other cruel, inhuman or degrading treatment, as defined under international law.
Revoke the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, signed by President Bush on 13 November 2001, which provides for indefinite detention without charge or trial and, among other things, states that those held under it "shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal."