Tag: committee

Members of non-State Groups Liable to Prosecution for Torture (UKSC)

On 13 November 2019, the UK Supreme Court ruled 4-1, in the case of R v TRA [2019] UKSC 51, that members of non-State groups may be prosecuted in the UK for crimes of torture under international law. The case makes it easier for countries to punish persons responsible for torture.

TRA was involved in the first Liberian civil war where the National Patriotic Front of Liberia (NPFL), an armed group led by Charles Taylor, attempted to takeover Liberia by deposing the then President, Samuel Doe. TRA was arrested in the UK in June 2017 and charged with one count of conspiracy to commit torture and seven counts of torture contrary to section 134 of the Criminal Justice Act 1988 (CJA 1988), which states:

“A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.” (p2)

Before the matter proceeded to a full trial at the Central Criminal Court, TRA made an application to dismiss the charges under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 asking for the clarification as to the correct legal test of ‘official capacity’ under CJA 1988, s134. The prosecution argued that at the relevant time and place, the NPFL was the de facto government authority with an effective control of the area where the alleged offences took place and that Charles Taylor and his subordinates were acting in an official capacity for the NPFL (p3).

In July 2018, the Judge concluded that CJA 1988, s 134 “applies, not only to acting for entities either tolerated by, or acting under the authority of the government of a state, but also, in situations of armed conflict, to individuals who act in a non-private capacity and as part of an authority-wielding entity”. He also dismissed a subsequent application for ‘no case to answer’ on the grounds that “while the questions whether the appellant was acting in a non-official capacity on behalf of the NPFL and whether the NPFL was an authority-wielding entity would ultimately be for the jury, the dismissal application turned on whether the evidence, taken at its highest, was sufficient for a jury properly to so conclude” (p4).

TRA appealed the ruling and the Court of Appeal dismissed the appeal in December 2018. TRA expressed his intention to appeal to the UK Supreme Court and the Court of Appeal certified the following question of law of public importance:

“What is the correct interpretation of the term ‘person acting in an official capacity’ in section 134(1) of the Criminal Justice Act 1988; in particular does it include someone who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs?” (p2)

On appeal before the UK Supreme Court, the Court held that CJA 1988, s134 must be examined in light of the UN Convention against Torture 1984 (CAT 1984) which it implemented and also that a distinction must be made between torture under CAT 1984, which required the involvement of at least one person in an official capacity, and torture under international humanitarian law and international criminal law, where there was no such requirement (Prosecutor v Kunarac, IT-96-23 & 23/1) (pp18-20).

Article 1 of CAT 1984 provides that:

“1. For the purposes of this Convention, ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

The UK Supreme Court directed itself to interpret CJA 1988, s134 through interpreting Article 1 of CAT 1984 in accordance with the rules of interpretation of international treaties prescribed by Article 31 of the Vienna Convention on the Law of Treaties 1969:

“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (p9)

Accordingly, the UK Supreme Court considered the meaning of Article 1 of CAT 1984 under three different approaches. In regards to the ordinary meaning of the words of Article 1 of CAT 1984, the Court found that:

“Those words are apt to describe a person performing official administrative or governmental functions but provide no suggestion that those functions must be performed on behalf of the government of the State concerned. The dichotomy drawn by the provisions is between official conduct and purely private conduct, not between State and nonState activity. While in most normal circumstances, such as those prevailing in the United Kingdom to which the appellant refers, official conduct will usually be performed on behalf of a State, it is necessary to consider the applicability of the Convention in less stable situations, including those where more than one body may be performing administrative or governmental functions within the territory of the State. Unhappily, examples of such situations arise not infrequently. In my view the words used do not support a limitation of the kind proposed. On the contrary, the words “person acting in an official capacity” are apt to include someone who holds an official position or acts in an official capacity in an entity exercising governmental control over a civilian population in a territory over which it holds de facto control” (p11)

Then the UK Supreme Court moved to consider the meaning of Article 1 of CAT 1984 in light of the object and purpose of CAT 1984. The Court found that the object of CAT 1984 :

“has been to make torture as defined in article 1 a criminal offence of universal jurisdiction enforceable by domestic courts and, by virtue of very extensive State participation in the Convention, to establish a machinery capable of reducing the likelihood of perpetrators of “official torture” escaping justice before national courts” (p13)

At that point, the UK Supreme Court engaged in a deep analysis of travaux preparatoires, finding, however, that they were inconclusive as to the intended meaning of Article 1 of CAT 1984 in terms of its application to members of non-State groups (pp13-19).

Next, the UK Supreme Court considered how the scope of Article 1 of CAT 1984 was understood in practice, among others, in a series of decisions of the Committee against Torture, which oversees the implementation of the convention. In the decisions in SV v. Canada, CAT/C/26/D/49/1996GRB v Sweden, CAT/C/20/D/083/1997 and MPS v. AustraliaCAT/C/28/D/138/1999, the Committee against Torture ruled that CAT 1984 did not apply to torture perpetrated by persons without any association with the State governments. On the other hand, in Sadiq Shek Elmi v AustraliaCAT/C/22/D/120/1998 (concerning Somalia), the Committee against Torture came to the opposite conclusion (p24).

Nevertheless, in HMHI v. AustraliaCAT/C/28/D/177/2001 (also concerning Somalia), Sadiq Shek Elmi v AustraliaCAT/C/22/D/120/1998 was distinguished on the grounds that “in the exceptional circumstance of State authority that was wholly lacking, acts by groups exercising quasi-governmental authority could fall within the definition of article 1” while “…with three years elapsing since the Elmi decision, Somalia currently possesses a State authority in the form of the Transitional National Government, which has relations with the international community in its capacity as central government, though some doubts may exist as to the reach of its territorial authority and its permanence.” A couple of years later, in SS v. The NetherlandsCAT/C/30/D/191/2001, the Committee against Torture recognised the applicability of Article 1 of CAT 1984 to actions of non-State groups in Sri Lanka where “the non-governmental entity occupies and exercises quasi-governmental authority over the territory” (p25).

Ultimately, the UK Supreme Court held that “despite its manifest inconsistencies, therefore, this line of authority does provide some support for the view that the conduct of non-State actors exercising de facto authority over territory which they occupy can fall within” Article 1 of CAT 1984 (p26),

At this point, the UK Supreme Court turned to domestic case law. It considered the judgment in R v Zardad, Case No T2203 7676 (2004) concerning Afghanistan between 1992 and 1996 when the Hezb-I-Islami faction was in control of Laghman Province. In this case, Zardad, who had been a chief commander of Hezb-IIslami and the military controller of the area of Sarobi at the material time, was charged with conspiracy to commit torture contrary to CJA 1988, s134. As part of his defence, he maintained that he had not been a public official as his group was not a part of a government but the Judge rejected this argument (pp30-31).

Ultimately, the UK Supreme Court ruled that:

“the words of those provisions in their ordinary meaning support this reading. They are sufficiently wide to include conduct by a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercises de facto control. In particular, I can see no justification for imposing the limitation on those words for which the appellant contends, which would require the conduct to be on behalf of the government of the State concerned. On the contrary, the words in their ordinary meaning are apt to include conduct on behalf of a de facto authority which seeks to overthrow the government of the State. This reading also conforms with the object and purpose of the provisions. Here I attach particular significance to the purpose of the Convention in seeking to establish a regime for the international regulation of “official” torture as opposed to private acts of individuals. Torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the scheme. In addition, some support for this conclusion can be found in the decisions of the CAT under article 22(7), UNCAT and it is favoured by the preponderant weight of academic comment” (p38)

Lord Reed dissented. He argued that the ordinary meaning of the words used in Article 1 of CAT 1984 excluded “a member of an insurgent group engaged in armed insurrection against the government of the country.” Furthermore, he claimed that the context of Article 1 of CAT 1984 dictated that it was “concerned with conduct for which the state bears responsibility.” Lord Reed invoked Article 2 of CAT 1984 arguing that:

“If torture carried out by insurgents in territory under their de facto control falls within the scope of UNCAT, it follows that article 2(1) imposes an obligation on states with which they cannot comply: they cannot take “effective” measures in relation to territory which they do not control. UNCAT cannot sensibly be interpreted in a way which would have the effect of imposing an obligation on states with which they cannot comply: lex non cogit ad impossibilia. That strongly suggests that article 2(1) cannot have been intended to apply in those circumstances, which in turn implies that the definition of torture in article 1 cannot have been intended to apply to torture committed by insurgent forces, without the consent or acquiescence of the state in question” (pp41-42)

Lord Reed also referred to academic opinions, other jurisdictions as well as the case law of the Committee Against Torture, arguing that, despite what the Majority claimed, it supported the argument that CAT 1984 was never meant to apply to members of non-State groups (pp42-49).

The ruling of the UK Supreme Court in R v TRA [2019] UKSC 51 was only the third case brought under CJA 1988, s134. The judgment, however, is important because it makes it clear that members of a non-State group could be prosecuted for the crime of torture under Article 1 of CAT 1984 (as applicable in the UK by virtue of CJA 1988, s134) wherever they act in an ‘official capacity’. This, undoubtedly, makes it easier for countries to punish torturers. However, ultimately, whether a person is to be considered to have acted in an ‘official capacity’ is for the jury to decide in each case based on available evidence.

President Trump’s Accountants Ordered to Turn Over His Financial Records to Congress (DC Circuit)

On 11 October 2019, the US Court of Appeals for DC Circuit ruled 2-1, in the case of Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019), that President Trump’s accounting firm, Mazars USA, LLP, must turn over his financial records to the House of Representatives in accordance with a subpoena. The case runs in parallel to Trump v Vance Jr19‐3204 (2019) concerning a similar subpoena by a New York State prosecutor, discussed here.

In April 2019, the House Committee on Oversight and Reform subpoenaed President Trump’s financial records relating to years 2011 – 2018 from his accounting firm, Mazars USA, LLP. The subpoena was justified on the grounds that the Committee was investigating whether President Trump had committed any wrongdoing and also considering whether Congress should amend ethics in-government regulations. However, President Trump sued in a federal District Court seeking to block the subpoena arguing that it was part of a campaign of harassment conducted by the legislature against the executive and, therefore, served no legitimate legislative purpose. The District Court upheld the subpoena and President Trump appealed (p2).

The US Court of Appeals for DC Circuit first summarised the case law on the issue of enforceability of Congressional subpoenas, starting with the first case considered by the US Supreme Court, Kilbourn v. Thompson, 103 U.S. 168 (1881), where the Court invalidated a subpoena issued outside of a valid Congressional investigation (pp12-18).

Then, the US Court of Appeals for DC Circuit set the starting point – Congressional oversight powers were very broad. Nevertheless, they were also subject to important limitations. Firstly, “the power of Congress . . . to investigate” must be deemed “co-extensive with [its] power to legislate” (per Quinn v. United States, 349 U.S. 155 (1955) at 160). Consequently, “Congress may in exercising its investigative power neither usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights.” Secondly, “Congress may investigate only those topics on which it could legislate” (per Quinn v. United States, 349 U.S. 155 (1955) at 161). Thirdly, “Congressional committees may subpoena only information ‘calculated to’ ‘materially aid’ their investigations” (per McGrain v. Daugherty, 273 U.S. 135 (1927) at 177) (p19).

At that point, the US Court of Appeals for DC Circuit emphasised that the case concerned a subpoena issued to President Trump’s accountant, not to the office of President of the United States directly, and, therefore, the case did not have involve the question of subpoenaing a sitting President. Consequently, the main question was “whether the Oversight Committee is pursuing a legislative, as opposed to a law-enforcement, objective.” (pp20-21).

In this respect, the US Court of Appeals for DC Circuit pointed out that “the fact that an investigation might expose criminal conduct does not transform a legislative inquiry into a law-enforcement endeavor” (per Sinclair v. United States, 279 U.S. 263 (1929) at 295). Furthermore, addressing President Trump’s claim that Congress was conducting a campaign of harassment against him, the Court explained that “in determining the legitimacy of a congressional act” Courts were not allowed to “look to the motives alleged to have prompted it” (per Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) at 508) (p22).

In order to determine whether the subpoena was issued pursuant to a legitimate legislative purpose, the US Court of Appeals for DC Circuit considered Chairman Cummings’s memorandum from 12 April 2019 where he set out the reasons behind the subpoena. The memorandum identified four questions that the subpoena would help answer:

  • “whether the President may have engaged in illegal conduct before and during his tenure in office”
  • “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions”
  • “whether [the President] is complying with the Emoluments Clauses of the Constitution”
  • “whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities”

Furthermore, the subpoena was issued because “[t]he Committee’s interest in these matters informs [the Committee’s] review of multiple laws and legislative proposals under [its] jurisdiction.” In fact, at the time of the subpoena, the House of Representatives was working on a number of Bills that could benefit from the information supplied by President Trump’s accountants:

  • Bill H.R. 1 would require Presidents to include in their financial disclosures the liabilities and assets of any “corporation, company, firm, partnership, or other business enterprise in which” they or their immediate family members have “a significant financial interest
  • Bill H.R. 706 would require sitting Presidents and presidential candidates to “submit to the Federal Election Commission a copy of the individual’s income tax returns” for the preceding nine or ten years
  • Bill H.R. 745 “would amend the Ethics in Government Act to make the Director of the Office of Government Ethics removable only for cause” (pp25-27).

The US Court of Appeals for DC Circuit then held that the issues which were the subject matter of the legislation Congress was working on, were in fact subject to Congressional regulation. The Court, for instance, pointed to the the United States Code which contained a whole range of rules regulating Presidents’ finances and records. It also rejected President Trump’s claim that such regulation would unconstitutionally add further requirements for candidates seeking the office of the President of the United States, contrary to the judgments of the US Supreme Court in Powell v. McCormack, 395 U.S. 486 (1969), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). Consequently, the Court found a valid legislative purpose related to matters which fell under the Congressional purview (pp36-45).

At the same time, the US Court of Appeals for DC Circuit rejected President Trump’s claim that the supposed legislative purpose was merely pretextual and the Committee was in fact engaged in a law-enforcement investigation. The Court held that Congress could investigate whether any criminal activity had taken place to inform itself what type of legislation it should pass to address such an activity (pp27-31).

Finally, the US Court of Appeals for DC Circuit found that the information sought by the subpoena in question was material to its legislative purpose. Even with information concerning financial records going back to 2011 (i.e. long before Mr Trump became the President of the United States), the Court held that the Committee had a legitimate interest in those records because, in theory, it could use them when deciding whether the Ethics in Government Act should require financial disclosure going back more than one year, as it was currently required (pp50-54).

Accordingly, the subpoena was upheld by the majority of the bench. However, Judge Roa dissented arguing that “when Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power“. She argued that the subpoena could not be upheld because the Committee was investigating a sitting President (alongside exercising a legislative function), which could only be done through the impeachment process (pp1-3). Judge Roa pointed to the early practice as the best source of information as to what was permitted under the Constitution. “Founding Era practice confirms the Constitution’s original meaning—investigations of unlawful actions by an impeachable official cannot proceed through the legislative power” (p20). She agreed that “the cases cited by the majority demonstrate that during an investigation of private activity, the incidental revelation of criminal activity is tolerated when Congress has a legitimate legislative purpose,” however, the subpoena cited the investigation into a potential wrongdoing by President Trump as one of the main reasons behind it (p46). Consequently, she would have invalidated the subpoena as issued outside a valid legislative purpose.

The case of Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019) was decided on partisan lines with Judges Tatel (appointed by President Clinton) and Millett (appointed by President Obama) voting against President Trump and Judge Roa (appointed by President Trump himself) voting in his favour. However, even beyond that, it is clearly visible from the majority and dissenting opinions that while the former put emphasis on the accountability of the executive branch as the overarching objective, the latter focused on the separation of powers as understood through the lenses of originalism.

The case of Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019), like the case of Trump v Vance Jr19‐3204 (2019) decided by the US Court of Appeals for 2nd Circuit (discussed here), is part of a long dispute over President Trump’s financial records. With President Trump consistently refusing to release his tax returns, his political opponents have been attempting to obtain them by various legal routes, including subpoenas from the House of Representatives and a New York State Grand Jury. Both subpoenas have now been upheld by the US Courts of Appeals. However, the judgment in Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019) will be appealed by requesting another hearing before an en benc panel of the US Court of Appeals for DC Circuit. Both cases could also be eventually appealed to the US Supreme Court.

After the Hearings: Kavanaugh Likely to be Confirmed

Between 5 and 7 September 2018, the Senate Judiciary Committee held confirmation hearings for the Supreme Court nominee Judge Kavanaugh. The Committee composed of 21 members (10 Democrats and 11 Republicans) questioned Judge Kavanaugh on his judicial record and philosophy. As expected, it was a hugely contentious hearing with constant shouts from the audience leading to multiple arrests and Democratic Senators attacking the nominee’s credibility and independence. However, after 3 long days, Judge Kavanaugh came out of the hearings without any significant blunder. Most of the time he followed the so called Ginsburg Rule declining to answer any question concerning any legal issue which could possibly come before the Court. Perhaps most crucially, Judge Kavanaugh also described Roe v Wade as an ‘important precedent’ therefore making it possible for the 2 pro-choice Republican Senators Lisa Murkowsky of Alaska and Susan Collins of Maine to support his nomination. The 2 Senators are considered the swing votes in the upcoming confirmation vote given that the Republicans need all their Senators to vote yes, assuming the vote would go down along the party lines, which is likely. Now that Judge Kavanaugh has not raised any red flags for any Republican Senator, he is likely to be confirmed by the Senate by the end of September so that he can join the Court by 01 October when its term starts.

The confirmation of Judge Kavanaugh to the Supreme Court will indeed be a historical moment. For the first time in almost 80 years the US Supreme Court will have a reliable originalist majority. The last time there was an originalist majority on the Court was prior to the so called ‘switch in time that saved nine’, i.e., before Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. For the next 80 years the Court will almost consistently decide cases coming before it based on the premise that the US Constitution is a living document whose meaning changes over time. Now all this is about to change. This, of course, does not mean that the Court will suddenly start overruling 80 years of precedents. However, given how much is at stake, it is no surprise the liberal forces are very anxious about their legacy.