II. United States Extraterritorial and Global Human Rights Obligations

When a state acts outside of its jurisdiction, it still has human rights obligations. These obligations can arise through 1) traditional extraterritorial obligations, 2) global obligations, or both.4 Traditional extraterritorial obligations encompass “acts and omissions of a State […] that have effects on the enjoyment of human rights outside of that State’s territory;” whereas global obligations are derived from the U.N. Charter and various human rights instruments “to take action, separately, and jointly through international cooperation, to realize human rights universally.”5

Although the extraterritorial and global human rights obligations were traditionally applied to economic, social, and cultural rights through the Maastricht Principles, they can reasonably be understood to similarly guarantee civil and political rights. Global obligations arise under the U.N. Charter, which does not differentiate between the different types of human rights. Articles 55 and 56 require states to take action “separately and jointly” to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”6 Additionally, many provisions of the International Convention on Civil and Political Rights (ICCPR) are understood to be customary international law or being extraterritorial in nature. The travaux préparatoires shows that there was no intention to give the States Parties “carte blanche” to have their agents commit crimes as long as they were acting abroad.7 Hence, civil and political rights can reasonably be included within the understanding of traditional extraterritorial human rights obligations as articulated in the Maastricht Principles.

III. Right to a Remedy

The right to a remedy is well-established in international human rights law. When a violation of human rights occurs, this right reflects a duty on the State to provide access to justice regardless of whether the human rights violation was done by State agents.

Several of the most important international human rights instruments emphasize the right to a remedy. Article 8 of the Universal Declaration of Human Rights provides that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” The ICCPR similarly requires State Parties to afford an effective remedy to a victim notwithstanding that the violation has been committed by persons acting in an official capacity. Similar provisions exist in several regional human rights treaties.8

One of the key attributes of the right to a remedy is the ability to invoke the guaranteed right.9 The United National General Assembly has adopted guidelines on the right to a remedy when there are violations of human rights law. The guidelines underscore that “a victim of a gross violation of international human rights law […] shall have equal access to an effective judicial remedy”10 The guidelines go as far as to say that the right to a remedy requires states to provide assistance in accessing justice and “minimize the inconvenience to victims and their representatives.”11

IV. EO 13928 and Victims of Torture

On June 11, 2020, President Trump issued EO 13928 “Blocking Property of Certain Persons Associated with the International Criminal Court” (EO 13928). In framing the sanctions to be imposed on those designated as “responsible for the ICC’s transgression” including the ICC Prosecutor’s investigations into actions committed by Americans in Afghanistan, President Trump explains:

The United States remains committed to accountability and to the peaceful cultivation of international order, but the ICC and parties to the Rome Statute must respect the decisions of the United States and other countries not to subject their personnel to the ICC’s jurisdiction, consistent with their respective sovereign prerogatives.12

This statement is misleading in its assumption that the only reason the United States would have to respect ICC decisions is if it were a party to the Rome Statute, and that rejecting the Prosecutor’s investigation is in line with the U.S.’ international obligations. In fact, the U.S.’ extraterritorial and global human rights obligations call for its cooperation in advancing the right to a remedy for victims of human rights violations around the world, especially where the United States itself is alleged to have committed those violations. Because it has the foreseeable effect of precluding victims’ right to remedy, EO 13928 inappropriately violates the U.S.’ extraterritorial and global human rights obligations by denying victims of torture in Afghanistan access to justice.

Victims of torture are widely accepted in international law to be a vulnerable group with the right to a remedy and even reparations. The prohibition on torture is accepted as a jus cogens norm, and there is wide consensus that torture amounts to a gross human rights violation.13 There are numerous international instruments and institutions14 dedicated to ensuring the rights of victims of torture, including The U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 14(1) of that Convention states the obligation that states have to guarantee torture victims’ right to a remedy:

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.

The effect of EO 13928 will foreseeably be precluding victims of torture from their right to a remedy, as its broad language will reach all those seeking to provide them with legal assistance.

The breadth of EO 13928 precludes any legal assistance to victims looking for a remedy in front of the ICC. The order sanctions:

1. those who have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any U.S. personnel or personnel of a U.S. ally without the consent of the United States, as well as

2. anyone who has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of the OTP investigation.

Amnesty International and other human rights advocates have pointed out that this vague language might reach anyone providing any assistance at all to the Court, including victim’s advocates, expert witnesses, national human rights researchers, and even student interns.15 In her piece “I help children in armed conflict. The President is forcing me to stop.,” the Special Adviser to the International Criminal Court Prosecutor on Children in and affected by Armed Conflict explains how EO 13928 goes so far as to preclude her from assisting children who have allegedly been sexually abused by armed groups in Myanmar.16

Given the Prosecutor’s declared intent to focus on violations of the prohibition on torture in Afghanistan, EO 13928 will foreseeably limit torture victims’ access to a remedy. When Prosecutor Fatou Bensouda initially submitted her request to open an investigation into crimes within the jurisdiction of the Court committed by the Taliban, Afghan forces, and U.S. actors, in the context of the armed conflict in Afghanistan, one of the war crimes that she explained she would focus on was torture and cruel treatment, particularly by U.S. forces:

On the basis of the information available, there is a reasonable basis to believe that members of the US armed forces and the CIA have committed the war crime of torture and cruel treatment pursuant to article 8(2)(c)(i).17

When the request to open an investigation was denied, appeals came both from the Prosecutor and from victims who had submitted representations to the Court. The latter appeal was important because it allowed the Appellate Chamber to hear testimonies of victims of U.S. torture.18 Such legal representation, facilitated by four separate legal teams supporting seven victims of the U.S. torture program, would have been unlikely if done after EO 13928 because all those assisting in the representation would have their property and interests in property in the United States blocked. Access to legal assistance and support from advocacy organizations is essential for these victims to be able to navigate the international criminal system. Even with representation, victims of alleged U.S. torture have been seeking justice for the past fifteen years with no remedy or accountability given up to this point. Sanctioning those able to render such support will foreseeably preclude those victims’ right to a remedy by handicapping their ability to make a strong case for themselves.

These victims are also unable to seek their right to remedy elsewhere, as courts in Afghanistan and other international human rights courts do not have jurisdiction over the matter. Other states who may try to hear such claims domestically will also be prevented by jurisdictional issues, immunity, foreign relations complications, and general pressure from the United States. Violating the right to a remedy for these victims at the International Criminal Court effectively deprives them of a right to a remedy anywhere.

The U.S.’ extraterritorial and global obligations extend over its conduct in Afghanistan. Traditional extraterritorial obligations apply when:

1. States exercise effective authority or control over people or territories, or

2. the exercise of States’ jurisdiction has a foreseeable effect outside of their territory.19

In this case, both bases for extraterritorial jurisdiction are satisfied. Victims have alleged torture by DoD and CIA personnel, sanctioned by authorities in the United States as part of a torture program in “black sites” around the world, including in Afghanistan.20 Victims described practices of physical and sexual assault executed directly by U.S. personnel21 who exercised complete authority over them. As described previously, sanctioning those seeking to assist these victims will foreseeably violate their right to a remedy. The U.S.’ global obligations, too, clearly extend in this case as the right to be free from torture is clearly a “human right and fundamental freedom” that the United States is obligated to promote both “separately and jointly” under Articles 55 and 56 of the U.N. Charter.

The violation of U.S. extraterritorial and global obligations makes EO 13928 inappropriate even if the United States is not a party to the Rome Statute. The right to a remedy includes an obligation on states to make available all appropriate legal, diplomatic, and consular means to ensure that victims can exercise their rights to remedy for gross violations of international human rights law or serious violations of international humanitarian law.22 By violating the right to a remedy for victims of alleged torture by sanctioning those looking to provide legal assistance to those victims, the United States has violated both its extraterritorial and global obligations.

V. Conclusion

Shortly after EO 13928 was issued, respected former four-star general Wesley L. Clark wrote:

The United States benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law […]. Taking the law seriously has also meant helping ensure there are consequences for the worst violations of it.

Clark’s analysis points to an atrocious dichotomy: while victims who are American or allies of America get the full breadth of global human rights protection, victims in the unfortunate position of suffering human rights violations, even gross ones like Mr. al-Asad, by these same parties will not be entitled to the same broad protection. Conditioning the right to a remedy on the nationality of the alleged perpetrator goes against the very essence of a global framework to cooperate for the realization of basic human rights. If the United States truly intends to “remain […] committed to accountability and to the peaceful cultivation of international order,” it must immediately withdraw EO 13928 and commit to cooperating with the OTP’s investigation.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17, Transcript of Day 1 Oral Hearing, 47 (AC, Dec. 4, 2019), available online.

   (Testimony of Nikki Reisch, legal representative for victim Mohammed Abdullah Saleh al-Asad, at the Appeals Hearing in front of the ICC. Reisch works at the Global Justice Clinic at the New York University School of Law). ↩

2. 2.

   Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020) [hereinafter EO 13928], available online. ↩

3. 3.

   Id. ↩

4. 4.

   Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights ¶ 8, Int’l Comm. of Jurists (Sep. 28, 2011) [hereinafter Maastricht Principles], available online, doi. ↩

5. 5.

   Id. ↩

6. 6.

   United Nations Charter, Arts. 55, 56, available online. ↩

7. 7.

   Christian Tomuschat, International Covenant on Civil and Political Rights (1966) ¶ 23, MPEPIL (Apr. 2019), paywall. ↩

8. 8.

   See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 13 (Nov. 4, 1950, entered into force Sep. 3, 1953), available online; American Declaration of the Rights and Duties of Man, Art. XVII (May 2, 1948), available online; American Convention on Human Rights, Art. 25 (Nov. 22, 1969, entered into force Jul. 18, 1978), available online; African Charter on Human and Peoples’ Rights, Art. 1 (Jun. 27, 1981, entered into force Oct. 21, 1986), available online. ↩

9. 9.

   Dinah Shelton, Human Rights, Remedies ¶ 3, MPEPIL (Jul. 2006), paywall. ↩

10. 10.

    Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter 2005 Basic Principles], available online. ↩

11. 11.

    Id. ↩

12. 12.

    EO 13928, supra note 2. ↩

13. 13.

    Roger-Claude Liwanga, The Meaning of “Gross Violation” of Human Rights: A Focus on International Tribunals’ Decisions over the DRC Conflicts, 44 Denv. J. Int’l L. & Pol’y 67, 70–71 (2015), available online. ↩

14. 14.

    (Examples include the Committee Against Torture, Voluntary Fund for Victims of Torture, U.N. Special Rapporteur on Torture, European Convention against Torture, Committee for Prevention of Torture, and Robben Island Guidelines). ↩

15. 15.

    Press Release, Amnesty Int’l, Attacks on the International Criminal Court Endanger NGO Workers (Jun. 11, 2020), available online. ↩

16. 16.

    Diane Marie Amann, I Help Children in Armed Conflict. The President Is Forcing Me to Stop., Just Security (Jun. 29, 2020), available online. ↩

17. 17.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for authorisation of an investigation pursuant to article 15 (PTC III, Nov. 20, 2017) [hereinafter OTP Request for Authorization], available online. ↩

18. 18.

    Katherine Gallagher & Nikki Reisch, ICC Holds Historic Hearing on U.S. Torture and Other Grave Crimes in Afghanistan, Just Security (Dec. 23, 2019), available online. ↩

19. 19.

    Maastricht Principles, supra note 4, § 9. ↩

20. 20.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Corrigendum of Victims’ Joint Appeal Brief against the “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”(AC, Oct. 1, 2019), available online. ↩

21. 21.

    OTP Request for Authorization, supra note 17, at 90–93. ↩

22. 22.

    2005 Basic Principles, supra note 10. ↩