The Freedom To Torture

Iraqi Detainee from Abu Ghraib

When a multinational force led by the United Stated invaded Iraq in 2003, Iraqi civilians expected to live under constant bombardment, shortages of food and water, and instability. What the Iraqi Civilians did not expect was for their husbands, fathers, and children to be exposed to brutal torture and humiliation by US military and Corporations in secret prisons, like Abu Ghraib.

In 2008, previously detained Iraqis filed a civil action in Federal Court against CACI Premier Technology, Inc. (CACI) alleging various claims under the Alien Tort Statute (ATS), including claims of war crimes, torture, crimes against humanity, sexual assault and cruel, inhuman or degrading treatment. CACI, a corporation with headquarters in Virginia, was hired by the U.S. Government to conduct “interrogations” of detainees in Abu Ghraib in 2003 due to a shortage of military personnel. On June 30, 2014, the Fourth Circuit Court of Appeals overturned the lower court’s dismissal and ruled that the case had sufficient ties with the US for a US court to hear the plaintiff’s claims. The main issue is whether the ATS, as interpreted by the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum Co. will allow for a jurisdictional basis to hold U.S. corporations and its employees liable for torture and war crimes committed in a foreign territory.

The United States, just like every nation, must implement the provisions of the International Covenant on Civil and Political Rights (ICCPR) into domestic law, including taking “the necessary steps… to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present covenant,” such as the “right not to be subjected to torture.” Since CACI was hired by the U.S. Government to assist with interrogations of Iraqi detainees, they should be held liable to such standard. If they are not held liable, the United States can get away with torturing detainees by simply hiring third-party “hitmen.”

Furthermore, pursuant to Article 2(1) of the ICCPR, the phrase “each state party to the present Covenant undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction” has been construed to include all persons in a State’s territory or under its control. Since Iraqi civilians are being held in a prison controlled by the United States, those individuals are entitled to protections of the ICCPR. The United States and all of its employees are not permitted to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.

If the Fourth Circuit affirms the lower court’s decision, it will release all U.S. corporations and their employees of liability for committing war crimes, crimes against humanities and torture. What kind of model is the United State setting for the rest of the world to follow?

Sources: International Enforcement Law Reporter: “U.S. Appellate Court Reinstates Abu Gharib Torture Suit against CACI” (October 2014);  Business and Human Rights Resource Center: “Abu Ghraib Lawsuits Against CACI, Titan”;   International Covenant on Civil and Political Rights

Image: Restoring Humanity


  1. This situation has similarities to that of IBM’s involvement in the holocaust. Since WWII, evidence has compiled and demonstrated IBM’s monumental support via technology in Hitler’s “Final Solution” scheme. While this information came out decades after the war ended, there still remains questions of the company’s liability. The same applies today to those U.S. corporations assisting in torturing Iraqi detainees and similar tactics. But if the Fourth Circuit affirms the lower court’s decision, the court will continue a history of corporate involvement in crimes against humanity. The different here is that today’s acts are said to be within reach to control, unlike that of IBM’s past involvement. One of the key factors here is the aspect of committing these acts on foreign territory. While there are borders to a country, a corporation is no less an American company overseas than it is within the United States. But this might not be the case if the companies are not held liable for foreign actions, leaving the door open to continue the breaches against humanity.

  2. The United States will set a bad precedent if the lower court’s decision is affirmed. The ICCPR states that the United States is responsible for all persons under its control. This includes each person having the right not to be subjected to torture. Allowing the United States to escape liability by hiring out third-party “hit-man” will set a negative precedent in the future. This will lead to slippery slope that would contradict the ideals of the ICCPR under Article 2(1), for the United States government and employees “to respect and ensure all individuals” with its control. The hired third-party “hit-men” are an extension of the United States government when they are hired for a clear purpose and with the intent to violate Article 2(1) of the ICCPR. The Fourth Circuit should reverse the decision of the lower court in order to establish a positive model for the rest of the world.

  3. In my blog post I talked about universal jurisdiction and the use of multinational tribunals for the prosecution of international human rights violations. The tribunals have mainly focused on third world countries to prosecute war crimes because they believe the justice systems in those countries are inadequate to do it themselves. It is clear that these tribunals are effective in carrying out justice and holding perpetrators of war crimes accountable for their actions. In cases where the justice system is deemed “adequate” to prosecute those who have been accused of committing international human rights violations we still see a grave miscarriage of justice. This is where the need for a stronger international court can be useful. Not only for prosecuting the crimes in third world countries but also for prosecuting crimes where people feel they are invincible.

  4. The Fourth Circuit should reverse the lower court’s judgment. If the Fourth Circuit decides to affirm the lower court’s judgment then the United States will be setting a negative model for the rest of the world to follow. The United States needs to be held liable for hiring third-party “hit-men” who tortured detainees in Iraq. If the United States is not held liable then this will send a negative message to the world because other countries will think they can get away with torturing detainees as well. According to Article 2(1) of the ICCPR, each state party needs to “respect and to ensure to all individuals within its territory” or under its control. Here, the United States Government hired the CACI to assist with interrogations of Iraqi detainees. Thus, the United States should be held liable for the CACI because they clearly ignored Article 2(1) of the ICCPR by torturing the Iraqi detainees. Therefore, it would be in the best interest of the United States if the Fourth Circuit reverses the judgment of the lower court. This way it will set a positive model for the rest of the world and show that if you violate Article 2(1) of the ICCPR consequences will follow.

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