Mr. Jose Alvarez
Hamilton Fish Professor of International Law and Diplomacy
Columbia Law School
President
The American Society of International Law
2223 Massachusetts Avenue, NW
Washington DC 20008
Fax +1 202-797-7133
Ms. Elizabeth Andersen
Executive Director/Executive Vice President
The American Society of International Law
2223
Massachusetts Avenue, NW
Washington DC 20008
Fax +1 202-797-7133
Toledo, February 28, 2008
Dear Jose and Elizabeth:
Further to my letter of February 25, 2008 by which I submitted on behalf of the Society members and non-Society members a proposal of a draft resolution and my contact with Elizabeth with regard to providing the report requested at Section XI of the Regulations of the Society, please find the report attached.
Pursuant to Section XI, three or more members of the Society may submit to the Executive Director a Proposal for a resolution to be adopted by the Society. As detailed in the attached Annex A, you have the list of the three or more members of the Society who submit a Proposal for a resolution to be adopted by the Society. That list in that letter has been updated as of today and will be updated as needed between now and the date of the Annual Business Meeting.
Pursuant to Section XI, the Proposal is to include a cover letter. Please consider this letter and its attachments said cover letter.
Pursuant to Section XI, the cover letter is to provide the title and general nature of the resolution. The title of the resolution is a “Resolution to the United States of America on the use of armed force, treatment of detainees, waterboarding, and investigation and prosecution of any instances of torture and cruel, inhuman and/or degrading treatment.” I believe that title provides the general nature of the resolution.
Pursuant to Section XI, the cover letter is to identify the three or more Society members who, by submitting the Proposal, endorse the proposed resolution. Please note said persons are identified in my February 25, 2008 letter attached hereto as Annex A.
Pursuant to Section XI, the cover letter is to identify as the Principal Proposer the single Society member to whom further correspondence respecting the Proposal is to be directed. I, Benjamin G. Davis, am that Principal Proposer.
Pursuant to Section XI, the Proposal is to include the exact text of the proposed resolution. As Annex B to this cover letter, please find the exact text of the proposed resolution.
Pursuant to Section XI, the Proposal is to include a report in support of the proposed resolution. As Annex C to this cover letter, please find a report in support of the proposed resolution.
If I can be of any further assistance, please do not hesitate to contact me. Thank you for your consideration of these matters.
Sincerely,
Benjamin G. Davis
Associate Professor of Law
University of Toledo College of Law
Annex A: Letter of February 25, 2008 (with updated list of signators)
Annex B: Proposed Resolution
Annex C: Report
Annex A: Letter of February 25, 2008 (with updated list of signators)
Mr. Jose Alvarez
Hamilton Fish Professor of International Law and Diplomacy
Columbia Law School
President
The American Society of International Law
2223 Massachusetts Avenue, NW
Washington DC 20008
Fax +1 202-797-7133
Ms. Elizabeth Andersen
Executive Director/Executive Vice President
The American Society of International Law
2223
Massachusetts Avenue, NW
Washington DC 20008
Fax +1 202-797-7133
Toledo, February 25, 2008
Dear Jose and Elizabeth:
Further to exchanges on the ASIL Teaching International Law Interest Group and ASIL Forum list serves over the past months, please find attached a draft resolution on International Law that all the co-signators below (who are more than three members of the American Society of International Law (“the Society”)) are submitting by this letter to the President and Executive Director for adoption by the Society at its April 10, 2008 annual business meeting, pursuant to procedures identified at Article IX of the Constitution and regulations of the Society as posted at www.asil.org.
We are aware of point 4.b at page 32 of the “Report of the Ad Hoc Committee to Review the Organization and Activities of the American Society of International Law” of Spring 1983 (Prof. Alfred P. Rubin, Chairman). We are also aware of the note dated March 24, 2005 entitled “ASIL Consideration of Taking Positions on International Law Issues” by Rick Kirgis and the 1966 policy statement of the Executive Council on the adoption of resolutions.
The attached draft resolution on international law is in compliance with that policy statement.
Thank you for your attention to this submission. Please let me know if you need further information.
Warmest personal regards,
Benjamin G. Davis
Associate Professor of Law
University of Toledo College of Law (for identification purposes)
Current Society Member: Yes
Years of Membership: Since 2005
Attachment: Draft ASIL Resolution of February 20, 2008
By e-mail, registered return receipt requested and telefax
ASIL Members
Tom Farer
Dean of the Graduate School
of International Studies
University of Denver
Current Society Member: Yes
ASIL Member Since: 1966
Peter W. Schroth
South Glastonbury, Connecticul
Current Society Member: Yes
ASIL Member Since: More or less continuously since 1969
Dr. Johannes Van Aggelen
Geneva, Switzerland
Current ASIL Member: Yes
ASIL Member Since: Since 1972 with a break from 1976-1980
Daniel B. Magraw, Jr.
President
Center for International Environmental Law
Current ASIL Member: Yes
ASIL Member Since: 1975
Former ASIL Council Member
Hope Lewis
Professor of Law
Northeastern University School of Law
Current ASIL Member: Yes
ASIL Member Since: the 1990’s
Mark
E. Wojcik
Professor
Director, Global Legal Studies
The John Marshall Law School
Current ASIL Member: Yes
ASIL Member Since:
Marcella David
Professor of Law & International Studies
Special Assistant to the President for Equal Opportunity & Diversity and
Associate Provost for Diversity
University of Iowa
Current ASIL Member: Yes
ASIL Member Since: 1995
Howard S. Schiffman, J.D., LL.M., Ph.D.
Clinical Associate Professor
M.S. Program in Global Affairs
Center for Global Affairs
New York University
Current ASIL Member: Yes
ASIL Member Since: 1996
Alberto L. Zuppi
Robert & Pamela Martin Professor of Law
Paul M. Hebert Law Center
LSU
Current ASIL Member: Yes
ASIL Member Since: 1996
Dr. Zeray Yihdego
Oxford Brookes University
United Kingdom
Current ASIL Member: Yes
ASIL Member Since: 2003/04
Omar M. Dajani
Associate Professor of Law
University of the Pacific
McGeorge School of Law
Current ASIL Member: Yes
ASIL Member Since: 2001
Fernando González-Martín
Geneva, Switzerland
Dr Ana Filipa Vrdoljak
Marie Curie Fellow
(Sept 2006 to Sept 2008)
Law Department
European University Institute
Firenze, ITALY
Current ASIL Member: Yes
ASIL Member Since: about 2000
Stephen E. Medvec, Ph.D.
Associate Professor of Political Science
Holy Family University
Current ASIL Member: Yes
ASIL Member Since: 2003
Annecoos Wiersema
Assistant Professor of Law
Michael E. Moritz College of Law
The Ohio State University
Current ASIL Member: Yes
ASIL Member Since: 2005
Kristine A Huskey
Clinical Professor and Director
National Security & Human Rights Clinic
University of Texas School of Law
Current ASIL Member: Yes
ASIL Member Since: 2005
Non-ASIL Member
Raquel Aldana
Professor of Law
University of Nevada, Las Vegas
Kathleen A. Bergin
Associate Professor of Law
South Texas College of Law
Daniel Janse
Robin M. Kennedy
Professor of Law
University of Toledo College of Law
Gary M. Maveal
Associate Dean for Academic Affairs
Professor of Law
University of Detroit
Mercy School of Law
Jamie Mayerfeld
Associate Professor of Political Science
Adjunct Associate Professor of Law, Societies & Justice
Seattle Campus Advisor, Human Rights Minor
University of Washington
Annex B - Draft Proposed Resolution to the United States of America on the use of armed force, treatment of detainees, waterboarding, and investigation and prosecution of any instances of torture and cruel, inhuman and/or degrading treatment (as of February 20, 2008)
Proposal.
Under the procedure set forth in Article IX of the ASIL Constitution, the following resolution was adopted at the Annual General Meeting of the American Society of International Law on __________.
A. The American Society of International Law reminds the United States of America of its Centennial Resolution on the Use of Armed Force and Treatment of Detainees adopted on March 30, 2006, to wit:
1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).
2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949, and other international law (jus in bello).
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogation is permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.
7. All states should maintain security and liberty in a manner consistent with their international law obligations.
B. Waterboarding is torture and has been for over 100 years in U.S.
domestic law and in international law.
C. Under the rule of law, the American Society of International Law calls upon the Attorney General of the United States to investigate and prosecute any instances of torture and cruel inhuman and/or degrading treatment under appropriate U.S. domestic and international law.
Annex C - Report on a draft proposed Resolution to the United States of America on the use of armed force, treatment of detainees, waterboarding, and investigation and prosecution of any instances of torture and cruel, inhuman and/or degrading treatment
I. Brief statement of the facts:
At its March 30, 2006 Centennial Meeting, the American Society of International Law adopted a resolution on the Use of Armed Force and the Treatment of Detainees. At that time, the decision was made to make a resolution that was universal in nature – that is that spoke to all nations equally. A specific amendment addressed to the United States of America and proposed from the floor by Professor Anthony d’Amato was rejected.
Since the adoption of that resolution matters of serious concern to international law with regard to American conduct in the years prior to and since the adoption of the resolution have only just come to light. These matters include the acquiescence over a number of years of high-level members of the Executive Branch and leaders of the Legislative Branch with torture and cruel inhuman and/or degrading treatment, the admission of the use of waterboarding on some detainees, the destruction of evidence of interrogations, the creation of new flawed military commissions in which coerced testimony may be admitted, the manipulation of legal guidance, and a continued reluctance of the appropriate authorities for practical considerations to investigate and prosecute any instances of torture and cruel inhuman and/or degrading treatment.
In light of these developments since the Centennial Resolution, this proposed resolution is submitted to the Society so that the Society can address matters of vital concern to the United States of America and the world.
II. The resolution
The resolution is in three parts which will each be briefly described below. For each part, the text, followed by the legal basis, and finally the rationale are provided. After the three parts, a final conclusion is provided.
Part A – The reminder to the United States of the Centennial Resolution.
1) Text of Part A
“A. The American Society of International Law reminds the United States of America of its Centennial Resolution on the Use of Armed Force and Treatment of Detainees adopted on March 30, 2006, to wit:
1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).
2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949, and other international law (jus in bello).
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogation is permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.
7. All states should maintain security and liberty in a manner consistent with their international law obligations. “
2) International Law basis for Part A
The proposers of the resolution refer the readers to the exemplar report of Mary Ellen O’Connell, ASIL Insight: The ASIL Centennial Annual Meeting Adopts a Resolution on the Use of Armed Force and the Treatment of Detainees, May 19, 2006, which is available at the Society’s web site at http://www.asil.org/insights/2006/05/insights060519.html .
3) Focus on the United States of America
Because of our special role as the preeminent international law society of the United States of America and because of the admissions that have come to light since the Centennial Resolution about the serious and grave departures of the United States from the most basic requirements of international law articulated in the Centennial Resolution, this resolution is proposed. This resolution builds on the Centennial Resolution by reminding the United States of America of its international obligations. On occasion, such as in its resolution calling on the United States of America to join the International Court of Justice, the Society has spoken with one voice to the United States of America.
Part B - Waterboarding
1) Text of Part B
“B. Waterboarding is torture and has been for over 100 years in U.S.domestic law and in international law.”
2) International and domestic law basis for Part B
See Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in United States Courts, 45:2 Columbia Journal of Transnational Law (2005) which is available at http://www.columbia.edu/cu/jtl/vol_45_2_files/45_2_wallach.html . Also, see Jordan Paust’s Beyond the Law (Cambridge 2007) for legal analysis of the common plan and torture.
3) Focus on waterboarding
There remains a persistent unwillingness on the part of the United States of America to recognize today what has been obvious for well over 100 years: that waterboarding is torture. Rather than continue a sterile and ultimately useless debate and in order to vindicate a crystal clear point of domestic and international law, the proposed resolution goes beyond the Centennial Resolution to attempt to end (in the Society’s opinion) the legal debate on waterboarding - one form of torture and cruel, inhuman and/or degrading treatment that is a clear violation of law.
Part C – Call to the Attorney General
1) Text of Part C
“C. Under the rule of law, the American Society of International Law calls upon the Attorney General of the United States to investigate and prosecute any instances of torture and cruel inhuman and/or degrading treatment under appropriate U.S. domestic and international law.”
2) International Law and Domestic Law Bases for Part C
Investigations and prosecutions of instances of torture and cruel inhuman and/or degrading treatment have occurred before both domestic and international tribunals. Such investigations and prosecutions may concern specific crimes or their cover up. See Benjamin G. Davis, Refluat Stercus: A Citizen’s View of Criminal Prosecution in U.S. domestic courts of high-level U.S. civilian authority and military generals for torture and cruel, inhuman or degrading treatment, January 30, 2008 draft (only to be cited for purposes of this resolution). 23:2 St. John’s Journal of Legal Commentary (2008) which is available at http://www.law.utoledo.edu/facultystaff/faculty/BDavis/articles/index.htm
3) Reason for the call
At key moments in the past, the Society has called on a state or states to take action in the interest of international law. Most notably this occurred in its resolution encouraging the United States of America to join the International Court of Justice and in the Centennial Resolution when it spoke to the world about key international legal obligations with regard to the use of armed force and treatment of detainees. With regard to the centuries old effort to outlaw torture and cruel, inhuman and/or degrading treatment, the revelations received since the Centennial Resolution as to official conduct of the United States of America have raised the gravest of concerns. The call draws the attention of the highest levels of the United States of America to take action of the most serious kind to preserve the rule of law against a rule based on practical considerations of men. With the admissions that waterboarding has occurred, it is obvious that criminal acts have occurred, should be investigated and prosecuted. Civil remedies are not available as U.S. domesic courts have dismissed such cases on the basis of doctrines such as the state secrets doctrine. Nothing less than investigation and prosecution will begin to repair the damage done by the conduct of which we have become aware since the Centennial Resolution.
III. Conclusion
The Proposed resolution is a statement of international law in the finest traditions of the Society. The Proposed resolution is in full compliance with Section XI, Paragraph 2 of the Regulations.
The Proposed resolution is submitted because we are in a rare moment when the Society as the American extension of the invisible college is summoned by its country, its government and its citizens to lead. It is a role only the Society can play as it is the highest representative of civil society in the United States with regard to international law. Either we resist torture or we acquiesce in it. Our country and the world needs this leadership at this time. We should not fail them.
Sincerely,
Benjamin G. Davis
Associate Professor of Law