December 14, 2005

Case Western Reserve University School of Law codifies rules governing treatment of detainees in war on terror

"Cleveland Principles" clarify acceptable treatment under international law

The fundamental international law rules governing the treatment of detainees in the global war on terror are now in one brief, easily understood document, thanks to the work of a group of experts who participated in a recent conference at Case Western Reserve University School of Law.

The document, known as “The Cleveland Principles of International Law on the Detention and Treatment of Persons in Connection with The Global War on Terror,” summarizes the existing state of the law regarding treatment of detainees in the war on terror in five general principles:

  • There is no law-free zone; international humanitarian law and international human rights law apply to US treatment of detainees, both in the United States and abroad.
  • Doubts about whether a person captured in the war on terror is entitled to prisoner of war status must be decided on a case-by-case basis by a competent tribunal rather than by a declaration by the President.
  • Nothing in the war on terror can justify committing acts of torture or cruel, inhuman or degrading treatment under any circumstances.
  • Outsourcing torture to other countries or to private contractors is unlawful.
  • Governments and government personnel are legally obligated not to engage in torture in the war on terror; persons who commit such acts may face individual criminal liability at home and/or in foreign or international courts.

The principles grew out of a day-long conference at the Case Law School, titled "Torture and the War on Terror." Michael Scharf, professor of law and director of the Cox International Law Center; and Amos Guiora, professor of law and director of the Institute for Global Security Law and Policy, organized the conference and developed the idea for the principles. The full text of the Cleveland Principles is available at: http://www.law.case.edu/centers/cox/content.asp?content_id=85

"We felt it was important to restate the laws on torture in a way that was so clear that the ordinary person on the street, the ordinary private in the military, and every member of Congress would know unambiguously where the line is drawn regarding the proper treatment of detainees," Scharf explained.

"This document is a codification of what the law really is, as opposed to what the Bush Administration says the law is," Scharf added. "It’s not creating any new legal obligations, but it puts the existing law into plain English."

The principles have 170 signatories, including: Mario M. Cuomo, former governor of New York; Admiral (ret.) John Hutson, former judge advocate general of the U.S. Navy; Richard Goldstone, former chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia and Rwanda; Jerome J. Shestack, past president of the American Bar Association; Jose E. Alvarez, president-elect of the American Society of International Law; and Louis Henkin, America's most venerable international law professor.

With a vote expected soon on the McCain Amendments, which would make it illegal for U.S. personnel to engage in torture, Scharf and Guiora recently mailed copies of the Cleveland Principles to all 535 members of the U.S. House and Senate. “Torture is illegal; it is immoral; and it does not lead to actionable intelligence,” said Guiora "If enacted, the McCain Amendment will unequivocally send the message to the world that America will not permit its personnel to engage in torture at home or abroad."

Scharf said, "The Cleveland Principles also make it clear that Congress must go a step farther than the McCain legislation, and prohibit the practices of irregular rendition and outsourcing torture to foreign governments and private contractors."

Scharf acknowledged that Secretary of State Condoleezza Rice recently said that as a matter of policy the United States would apply the prohibitions contained in the anti-torture conventions to U.S. personnel acting abroad. "But Rice’s statement fell well short of the mark," he added. "The prohibition on torture is not just a matter of policy; it's required by binding international law. And the prohibition applies whether the acts are committed by U.S. personnel, or foreign agents or private parties acting on our behalf."

Scharf and Guiora are available to provide expert commentary on issues related to torture and the war on terror. Scharf formerly served as State Department Counsel to the Counter-Terrorism Bureau in the first Bush Administration. Guiora served as Judge Advocate General of the Israeli Defense Forces, and Commander of the Israeli Judge Advocate General School. Copies of a CD of an hour-long National Public Radio segment featuring Scharf and Guiora discussing the issue are available on request.

For more information: Jeff Bendix 216-368-6070.

Posted by: Heidi Cool, December 14, 2005 02:35 PM | News Topics: School of Law

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