The IAJ’s Legal Framework and Analytical Contributions

This page sets out the IAJ’s legal framework on official harm outside conventional custody and the analytical positions it advances. Where a position is argued rather than settled, the page says so. It supplements the About page.

The IAJ’s Legal Framework on Non-Custodial Official Harm

Much of the IAJ’s work — in immigration detention, in the conduct of law enforcement, and in historic experimentation on persons in state institutions — falls within the conventional scope of the anti-torture framework. The IAJ’s distinctive analytical contribution concerns the settings that framework has been slower to reach.

The core of that contribution is that UNCAT’s absolute prohibition on torture is not limited to custodial or interrogation settings. UNCAT Article 1 defines torture by reference to five elements: any act; intentionally inflicted; causing severe pain or suffering, physical or mental; by or at the instigation of or with the consent or acquiescence of a public official; for an enumerated purpose; pain or suffering arising only from, inherent in or incidental to lawful sanctions is excluded. The text contains no setting qualifier. The United States’ contrary understanding, that Article 1 applies only to persons in the offender’s custody or physical control, is the principal opposing position. The IAJ advances its position on five independent grounds:

The treaty text. Article 1 creates no setting exclusion. The ordinary meaning of its enacted text, read under VCLT Article 31, extends to any official conduct satisfying its five elements.
The CAT Committee. General Comment No. 2 (2008) confirms that the obligation to prevent torture extends to all branches of government, including the judiciary, and applies to all persons within state jurisdiction.
Evolved jus cogens. The absolute prohibition on torture is a peremptory norm of general international law. Its minimum content is not limited to detention or custody. It operates above and independently of treaty architecture.
The U.S. RUDs. The United States’ Reservations, Understandings, and Declarations rest on a ratification-era representation: that existing federal and state law was sufficient to implement the Convention, so that new legislation was needed only for the criminal-jurisdiction provisions of Article 5 (Senate Foreign Relations Committee, Exec. Rep. 101-30, 1990, PDF pages 10 and 41). Finland, the Netherlands, and Sweden formally objected to the U.S. reservation to UNCAT Article 16, and Germany stated its understanding that that reservation and two U.S. understandings do not touch upon U.S. obligations under the Convention; eleven European States Parties formally objected to U.S. reservations to the ICCPR. Where domestic mechanisms demonstrably fail, the RUDs’ own logic confirms the international obligation is unfulfilled.
Functional-custody and jurisdictional-custody analysis. Persons compelled to participate in proceedings by force of law — who cannot exit without catastrophic legal consequences, whose medical care and procedural rights are controlled by the presiding authority, and who have no effective mechanism for relief — are in a relationship the IAJ terms jurisdictional custody: a proposed middle category between physical confinement and freedom, which the IAJ argues from OPCAT Article 4(2), ICCPR Article 9, CRPD Articles 14 and 17, and CRC Article 37. Within that relationship, treatment satisfying the remaining Article 1 elements is within the Convention’s scope.

Contributing to the Evolution of Human Rights Understanding

The IAJ’s mandate extends beyond investigation, documentation, and reporting. In filling the gap left by the absence of a U.S. NHRI, the IAJ has found itself working on questions that existing frameworks have not yet fully addressed — questions about how international human rights law applies in institutional settings that were not the primary focus of the treaties governing them, and to violations whose acts lie in the past but whose consequences do not. The IAJ offers its analysis on these questions not as settled conclusions but as contributions to a conversation the international human rights community is still working through.

Why the U.S. Legal Setting Demands Careful Analysis

The United States operates a formally sophisticated legal system, governed by doctrines — judicial immunity, non-self-execution, the lawful sanctions framework, plenary power in immigration, the federal trust relationship with Indigenous nations, and state secrets — refined over generations. Working within this environment requires engaging seriously with those doctrines, because a human rights analysis that does not account for them will not reach the people it needs to reach. The analytical work required must meet the system on its own terms. Where the IAJ’s analysis is sound, it holds it with confidence. Where it remains contested or uncertain, it says so honestly.

The IAJ Analytical Memorandum

The IAJ Analytical Memorandum, UNCAT and jus cogens: a contemporary perspective, advances original arguments for which no controlling precedent exists, engages adversarial critique systematically and transparently, and makes its reasoning available for peer scrutiny. It has been subjected to seven rounds of adversarial stress-testing. Its development benefited from consultation with practitioners in Istanbul Protocol methodology, including at the International Rehabilitation Council for Torture Victims; those consulted have not reviewed the Memorandum, and their acknowledgment does not constitute endorsement.

Forum Nullus

One contribution is the analytical concept the IAJ terms forum nullus: the position that a proceeding which systematically deprives a litigant of the basic conditions for a fair hearing — by institutional design rather than inadvertence, for a prohibited purpose — may not be a court in the sense that law and human rights treaties require. This has implications for the finality of judgments obtained through such processes and for the right of access to justice, which the IAJ argues has peremptory status — a contested classification. The question is not confined to family and civil courts; it arises equally in removal proceedings conducted without meaningful access to counsel, interpretation, or the evidence on which the decision rests. The IAJ offers this as an analytical framework, not as established doctrine.

Contactless Battery: Torture Without Physical Contact

The Memorandum also develops the analysis of official conduct that causes documented physical harm — permanent neurological damage, immunocompromise, nerve death — through compelled procedural participation rather than direct physical contact. The absence of physical contact does not, on the IAJ’s analysis, change the structure of the harm where it is foreknown, documented, and deliberately continued for a prohibited purpose. UNCAT Article 1 requires no physical contact — only that a public official inflict severe suffering for a prohibited purpose. Whether this analysis is correct is for the international human rights community to assess.

Jurisdictional Custody: A New Category in International Human Rights Law

Among the IAJ’s conceptual proposals — one that remains the subject of active development and that the IAJ advances as argued doctrine rather than settled law — is the concept of jurisdictional custody: a proposed middle category, for the purposes of liberty and custody analysis, between physical confinement (covered by conventional custody doctrine) and complete freedom. It is not needed for the IAJ’s primary argument that Article 1 contains no setting qualifier; it addresses the separate question of when legal compulsion should be treated as a form of custody.

In the IAJ’s reading, international human rights doctrine on deprivation of liberty has largely proceeded from a binary distinction: a person is either in custody, in the conventional physical sense, or free. Doctrine has extended custody to some settings beyond prison walls, such as house arrest, but not to legal compulsion as such. This binary was adequate for the paradigm cases UNCAT’s drafters had in mind in 1984. It is insufficient for forms of official coercion in which courts, administrative agencies, child protective services, and immigration authorities hold persons in relationships of coercive compulsion that are neither physical custody in the traditional sense nor genuine freedom — including persons subject to electronic monitoring, reporting conditions, and supervised release pending removal.

The IAJ proposes jurisdictional custody as a defined category characterized by four elements: (a) a state authority with coercive legal power over a person; (b) a compulsory legal relationship from which the person cannot exit without catastrophic consequences — loss of all legal claims, permanent termination of parental rights, contempt of court, detention or removal, financial ruin; (c) documented foreknown severe harm from continued participation; and (d) absence of any effective domestic remedy or mechanism of exit.

The IAJ draws this proposal from five provisions of four treaties, none of which expressly recognizes the category:

OPCAT Article 4(2) defines “deprivation of liberty” as “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.” The definition uses “any” twice — “any form of detention or imprisonment” and “any judicial, administrative or other authority” — and names judicial and administrative authority as mechanisms of compulsion. The definition nonetheless requires detention, imprisonment, or placement in a custodial setting; the IAJ’s argument is that legal compulsion can, in defined circumstances, amount to such a setting.
ICCPR Article 9 guarantees that no one shall be subjected to arbitrary deprivation of liberty. The Human Rights Committee, in General Comment No. 35 (2014), interpreted this in functional rather than architectural terms, extending deprivation of liberty beyond prison walls to settings such as house arrest and involuntary transportation. The same General Comment states that liberty of person concerns freedom from confinement of the body, not a general freedom of action. The jurisdictional-custody analysis therefore proposes an extension of that functional reading, not an application of settled doctrine.
CRPD Article 14 prohibits the deprivation of liberty of persons with disabilities on the basis of disability and guarantees reasonable accommodation to persons with disabilities deprived of their liberty through any process.
CRPD Article 17 protects every person with a disability’s right to physical and mental integrity, regardless of whether the mechanism of harm is physical confinement or legal compulsion.
CRC Article 37 protects children from arbitrary deprivation of liberty. Children held in state-controlled placements by judicial or administrative authority, and unable to leave at will, are in a situation this provision encompasses. Article 37 does not itself address their parents; the IAJ argues separately that parents compelled to participate under threat of permanent termination of parental rights are in the coercive compulsory relationship the jurisdictional-custody analysis describes.

In each setting, the four-element definition identifies whether jurisdictional custody exists; the UNCAT Article 1 five-element test then determines whether the conduct within that custody constitutes torture. This is argued doctrine, not settled law. No treaty body has expressly adopted the jurisdictional-custody category. The IAJ advances it as the most coherent synthesis of convergent treaty authority, as a framework capable of application by the CAT Committee in any Article 20 inquiry, and as a contribution to the literature the international human rights community is developing in response to forms of official conduct that the custody-or-free binary cannot adequately address.

Judicial Persecution and Torture: Clarifying the Analytical Basis

Judicial persecution — the systematic use of legal process to harm a person — is not in itself the same thing as torture as defined in international treaty law. The five Article 1 elements of UNCAT define torture with precision, and the fact that judicial or administrative conduct causes harm does not automatically satisfy them. The IAJ’s framework therefore does not treat judicial persecution as torture per se. It holds that where all five Article 1 elements are satisfied — including severity, intentional infliction, and a prohibited purpose; an official’s documented foreknowledge of the harm can be evidence of intent, but does not by itself establish a prohibited purpose — the conduct is torture regardless of the institutional setting in which it occurs. The analysis does not collapse the distinction; it applies the treaty elements to documented facts to determine which cases cross the threshold.

Continuing Obligations for Historic Violations

MKUltra, which the IAJ is preparing to investigate, and the federal Indian boarding school system, which falls within the IAJ’s Indigenous rights work, raise a further question: what the United States owes today for violations whose operative acts occurred before it ratified the treaties now binding on it. Treaties do not ordinarily apply retroactively. But the obligations to investigate, to disclose the truth, to acknowledge victims, and to provide redress are obligations of present conduct, and international and regional human rights bodies have recognized that a state’s continuing failure to meet them, after the relevant obligation has taken effect, can itself constitute a violation. Where records were destroyed, where victims were never told what was done to them, or where the consequences of removal persist across generations, the IAJ examines whether the present failure to act is a present breach. It advances this analysis carefully, and identifies where the law remains unsettled.

Bringing Analysis to Those Whose Conduct It Addresses

The IAJ’s intention is to bring its analysis directly to the people and institutions whose conduct it addresses — judicial officers, CPS officials, immigration and border authorities, officials responsible for federal Indian policy, administrative authorities, and law enforcement personnel — not as accusation, but as education. Many of the officials whose conduct the IAJ investigates are operating within institutional cultures and doctrine-based frameworks that exclude or suppress the international human rights standards governing their conduct. Providing that framework directly — clearly, precisely, and without condemnation — is among the most direct paths to change.

The Goal: Champions, Not Defendants

The IAJ measures its deepest success not in violations documented or treaty submissions filed, but in the number of people who come to understand what they have been doing, accept that understanding with honesty, and use the authority they hold to require something closer to what human rights demands. The IAJ does not know whether it will achieve this in the United States. But it is the goal toward which all of its work is directed.

Global Relevance

The IAJ operates in the United States. But the questions it is working through — how human rights treaties apply to judicial conduct, how domestic immunity interacts with international accountability, how non-custodial official harm is documented, how states answer for the treatment of migrants and Indigenous peoples, and what remains owed for historic abuses the state concealed — arise in every legal system. The IAJ does not claim its analysis is universally applicable. But it hopes that the frameworks it develops will be useful to advocates, investigators, and officials in other countries facing analogous questions. The work is done here because this is where the IAJ operates. The ideas, if they are good ones, belong to anyone who can use them.