Written by Keisuke Fujio

Introduction

The upcoming prosecution of Michael Sang Correa (Correa) represents a significant step forward for U.S. compliance with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and U.S. leadership in the fight against torture. Correa, a Gambian national, is only the third person – and first foreign national – to be prosecuted by the U.S. for torture committed abroad.¹US Trial Against Gambian Accused of Torture, Hum. Rts. Watch (Sept. 11, 2024), https://www.hrw.org/news/2024/09/11/us-trial-against-gambian-accused-torture; Alleged Gambian death squad member to stand trial for torture and conspiracy to commit torture in Denver, Colorado, TRIAL Int’l (Aug. 24, 2024), https://trialinternational.org/latest-post/gambia-jungler-trial-torture-denver-colorado-2024.

Correa, who will stand trial in 2025, is alleged to be a former member of the “Junglers,” a notorious paramilitary group from the Gambia that operated between 1994 and 2016, under former Gambian President Yahya Jammeh.²See TRIAL Int’l, supra note 1. The group operated outside traditional police and security structures, and has engaged in extrajudicial killings, forced disappearances, and torture.³See US Trial Against Gambian Accused of Torture, supra note 1. The indictment, filed in the U.S. District Court for the District of Colorado, alleges that Correa participated directly in the torture of perceived political opponents in the wake of a failed coup attempt against Jammeh in 2006. He allegedly beat, administered electric shocks, and poured molten plastic and acid onto victims.⁴See id.; see also Alleged Gambian Death Squad Member to Stand Trial in USA For Torture, Ctr. for Just. & Accountability (Aug. 26, 2024), http://cja.org/wp-content/uploads/2024/08/2024.08.23-FINAL-correa-Press-Release-In-Advance-of-Trial.pdf (last visited Sept. 30, 2024).

Correa’s alleged crimes all occurred in the Gambia, and Correa is not a U.S. citizen. Nevertheless, 18 U.S.C. § 2340A and the UNCAT permit his prosecution in U.S. Federal Court.

U.S. Implementation of UNCAT Articles 4, 5, 7

The UNCAT is one of the largest international human rights treaties with 174 state parties.⁵See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nov. 20, 1994, [hereinafter UNCAT] T.I.A.S. No. 1120.1. State parties are responsible for, among other things, prohibiting torture, criminalizing torture, and holding perpetrators of torture to account.⁶See generally id. (noting that other obligations include preventing torture and ensuring that survivors of torture have an enforceable right to compensation and rehabilitation). Specifically, Article 4 obligates state parties to criminalize all acts of torture under its domestic criminal law,⁷UNCAT, supra note 5, at art. 4. and Articles 5 and 7 obligate parties to, respectively, “establish…jurisdiction over such offenses in cases where the alleged offender is present in any territory under its jurisdiction…” and “submit [cases] to its competent authorities for the purpose of prosecution.”⁸UNCAT, supra note 5, at arts. 5, 7. The U.S. is a state party and fully implemented UNCAT through 8 C.F.R. § 208.18. It implemented Article 4 through its torture statute, 18 U.S.C. § 2340A.⁹Pursuant to U.S. Const. art. II, § 2, cl. 2 (empowering the president, “by and with the Advice and Consent of the Senate, to make Treaties….”); see also U.S. v. Belfast, 611 F.3d 783 (11^th Cir. 2010) (upholding 18 U.S.C. § 2340A, because it was “…well within Congress’s power under the Necessary and Proper Clause to criminalize both tortures [domestic and foreign], as defined by the Torture Act.”). 18 U.S.C. § 2340A provides that:

“(a) Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.(b) There is jurisdiction over the activity prohibited in subsection (a) if— (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender. (c) A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”

18 U.S.C. § 2340A is a rare example of a statute applying extraterritorially, providing jurisdiction over alleged torture that occurred on foreign soil if the alleged perpetrator is present in the U.S.¹⁰Extraterritorial application of U.S. legislation requires clear evidence of congressional intent (See Restatement (Fourth) of Foreign Relations Law § 404 (Am. L. Inst. 2018)). Here, the statutory notes of 18 U.S.C. § 2340A expressly direct it to take effect in concert with U.S. ratification of UNCAT, thereby providing clear evidence of extraterritorial intent; see also Extraterritorial Application of American Criminal Law, Cong. Rsch. Serv. (Mar. 21, 2023), https://crsreports.congress.gov/product/pdf/RL/94-166  (affirming that 18 U.S.C. § 2340A remains good law).

Articles 5 and 7 of UNCAT require a state to establish jurisdiction and prosecute any torture suspect who is present in-country even if the alleged torture is committed abroad.¹¹See J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 131-137 (1988). Altogether, Articles 4, 5, and 7, obligate the prosecution of any alleged torturer found in the U.S., irrespective of where that torture allegedly occurred.¹²Id.

Prosecution of Michael Sang Correa

In September 2019, Correa was administratively detained in Colorado by U.S. Immigration and Customs Enforcement (ICE) for allegedly overstaying his visa.¹³Order Denying Defendant’s Motion To Dismiss The Indictment at 3, United States v. Correa, No. 20-cr-148-CMA (D. Colo. Feb. 28, 2024), https://www.govinfo.gov/content/pkg/USCOURTS-cod-1_20-cr-00148/pdf/USCOURTS-cod-1_20-cr-00148-1.pdf Correa had arrived in the U.S. in 2016 on a G-2 visa that he acquired as a “representative of a recognized government.”¹⁴Id. Correa had originally come to the U.S. to attend the U.N. General Assembly as part of the outgoing Jammeh government.¹⁵Id. According to prosecutors, Correa then unlawfully overstayed his visa.¹⁶Id. Regardless, for purposes of 18 U.S.C. § 2340A, Correa was “present in the United States” at the time of his arrest. Correa was subsequently indicted in June 2020 by a federal grand jury for torture. Under U.S. law, the elements of torture are: 1) an act; 2) committed by a person acting under the color of law; 3) specifically intended; 4) to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions); 5) upon another person within his custody or physical control.”¹⁷18 U.S.C. § 2340A. The U.S. defines torture similarly to the UNCAT, which defines it as: “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.”

Correa is charged with one count of conspiracy to commit torture and six counts of committing torture.¹⁸Indictment at 3-14, United States v. Correa, No. 20-cr-148-CMA (D. Colo. Jun. 6, 2020), https://storage.courtlistener.com/recap/gov.uscourts.cod.198052/gov.uscourts.cod.198052.1.0.pdf Correa allegedly conspired to and participate in torture of 6 victims following the 2006 attempted coup in the Gambia, seeking to interrogate, extract confessions from, and punish suspected members of the coup attempt.¹⁹Id. Correa is accused of, among other horrors, extinguishing cigarettes on and electrocuting several victims, restricting several victims’ breathing with plastic bags, and beating all victims with tools from hammers to wires to chairs²⁰Id. Correa allegedly perpetrated these acts as a member of the “Junglers,” an armed group in the Gambia that received orders from former President Jammeh.²¹Id.

As the facts allege, Correa acted in his official capacity as a Jungler, meeting elements one and two. Moreover, the alleged acts were not lawfully sanctioned, for the victims were arbitrarily detained and taken to “Mile 2 Prison” or “NIA Headquarters” to be subject to torture.²²Id. at 3. Regarding element three, Correa and the Junglers acted pursuant to orders from Jammeh to arrest and interrogate suspects.²³Id. Their actions were purposeful and intentional. The severe infliction of pain under element four needs no expansion. Regarding element five, all torture alleged occurred at detention sites, under the control of the Junglers.²⁴Indictment, supra note 18, at 16-50. Altogether, the facts as alleged squarely meet the elements of torture under 18 U.S.C. § 2340A.

Conclusion

The U.S. prosecution of Michael Sang Correa is the first time a foreign national has been charged under 18 U.S.C. § 2340A. 18 U.S.C. § 2340A is the domestic implementation of Article 4 of UNCAT, a near-universally accepted codification of the customary international prohibition on torture. In addition, UNCAT Articles 5 and 7 obligate the assertion of jurisdiction over Correa, given his presence in-country and irrespective of where his alleged conduct occurred. Thus, the clear statutory authorization and treaty-based requirements by UNCAT provide the U.S. prosecution efforts both compelling domestic constitutional and international legal foundations.

Such strong U.S. compliance with UNCAT signals to human rights abusers around the world that they will find neither refuge nor impunity in America. This pursuit of justice and accountability is a welcome advance by the U.S. in the global fight against torture, and it must continue.