Explainer: can people tortured by the CIA now sue the US?

Torture victims will soon be lining up to sue the US. What are their chances? EPA/Facundo Arrizabalaga

The US Senate’s report on the torture carried out by the CIA makes shocking reading. Questions will be asked about whether individual victims can sue for compensation for losses suffered, and where they might be able to do so.

The answer: their chances are small, and the procedural hurdles they face immense.

Can a victim sue in the US courts?

Torture is a crime but it is arguably also a tort. That means victims can sue for damages in civil courts – subject to any US laws that might prohibit suit against the US government and its agencies. In this scenario, the defendants would be the US government, the CIA itself and possibly individual officers.

The relevant US courts will need to be persuaded that they have jurisdiction over the acts committed by US agencies and personnel overseas and be prepared to apply laws extra-territorially. Universal jurisdiction may assist under the Torture Convention.

There is precedent for prosecuting acts of torture committed by serving army personnel in the English courts: it was decided that UK human rights law applied in the case of Baha Mousa, a hotel receptionist who died in UK military custody in Iraq in 2003. Mousa was found to have suffered more than 93 injuries before his death, and seven British soldiers were eventually charged in connection with his treatment – although all but one were found not guilty of inhuman treatment. One pleaded guilty and served a year in prison.

Can a victim sue in the jurisdiction where the torture occurred?

Here, the problem is the immunity enjoyed by the US and its agencies under the rules of public international law. UN rules mean that a state cannot be sued in the courts of another state, except in a few exceptional circumstances, mostly relating to commercial matters.

States can be sued in foreign courts for torts they have committed in the territory of that foreign state (the tort within the jurisdiction exception to immunity).So a claim by a victim against the CIA or its agents in the courts of the state where the torture occurred might be possible in principle.

But the central problem remains: the US would be unlikely to appear in such proceedings, and enforcing any court-ordered compensation would be extremely difficult. It should be remembered as well that ultimately the immunity of states with respect to criminal proceedings in these matters is absolute.

Can an individual sue in a third state?

Victims who are not nationals of the states in which the acts occurred might try to sue the US in their home jurisdictions by invoking universal jurisdiction for torture. But if they try, they will face immunity hurdles.

The US and its agencies would be immune from any such suit under the general international law rules, which have been adopted in the domestic law of most states (for example, the UK State Immunity Act 1978). The UK’s position was carefully set out in the 2006 House of Lords case of Jones v Saudi Arabia, which upheld South Africa’s immunity and that of its prison officers in respect of allegations of torture brought by English nationals.

What can be done at an international level?

A state can take a case to the International Court of Justice if one of its citizens has been tortured by another. Torturing the nationals of a foreign state clearly attracts state responsibility. The problem will be the court’s jurisdiction. The US does not accept the jurisdiction of the ICJ except under certain specific treaties and the Torture Convention does not give the court jurisdiction. A sate cannot plead immunity at this level because the claim is state to state. Another issue is whether the state of the national would be prepared to take on the case.

The International Criminal Court (the ICC) (a separate court established to try individuals for international criminal acts) has limited jurisdiction to prosecute individual state agents for a limited number of international crimes.

Torture is not one of the crimes covered by the statute directly, but it may be arguable that the individual acts committed by CIA agents amounted to crimes against humanity as part of a widespread or systematic attack against a civilian population on the basis that the torture was part of a policy committed against a great number of victims or in a systematic way) and subject to the court’s jurisdiction.

The problem with the ICC is that the US is not a party to the statute of the Court, and does not accept its jurisdiction. The UN Security Council can institute proceedings but is unlikely to do so given the political context. The ICC could assert jurisdiction on the basis that the alleged crimes occurred in a state which accepts the court’s jurisdiction (such as Afghanistan), but again any such prosecution might be politically difficult to initiate given the relations between the US and the relevant states.

In addition, any exercise of the ICC’s jurisdiction requires a state to be unwilling or unable to mount a prosecution itself.

Ultimately, the best outcome torture victims can hope for at this stage would probably be an out-of-court settlement from the US by way of compensation. The chances of seeing American officials subject to major court proceedings remain slim.