Obama is BOUND BY LAW to prosecute torture.

[eomer]

261. That's incorrect, the Geneva Conventions do, as I said, explicitly override and allow no discretion.

The duty to prosecute, and even to search and arrest, is absolute and allows no discretion. And I'm surprised that a person on DU would be arguing this - the progressive position is clearly to advocate prosecution of torturers. To try to make the case that there's a way not to prosecute, especially when such a case is absolutely mistaken, is not really excusable. It's what we would expect from the extreme right wing, not something we should be entertaining here.

Here is an article by a Duke law professor that is one of many references that can be found stating that the duty is absolute and allows no discretion:

The second paragraph of common Article 49/50/129/146 sets forth the obligation of state parties to search for and arrest persons alleged to have committed such grave breaches.⁸⁹ This common article provides that

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.⁹⁰

These obligations "for the pursuit, arrest, trial, and punishment of grave violations of the Conventions constituted one of the Convention's more remarkable and, by all humanitarian, liberal, and non-militarist criteria, progressive elements"⁹¹ The obligation to prosecute is absolute; neither immunity nor amnesty from prosecution may be granted for grave breaches.⁹² The text of this common article does not define in any further detail the breadth of the obligation to search for and arrest persons suspected of committing grave breaches, and it does not impose any geographic, temporal, or other limitations on this obligation. The principal difficulty of this common article, however, was the states' determination of "how to legislate so as to catch alleged criminals and then to extradite those whom they chose not to bring to justice themselves...."⁹³

The commentary of the 1949 Geneva Convention IV published by the ICRC does not clarify the breadth of this obligation to search for and arrest persons suspected of grave breaches.⁹⁴ The commentary for the second paragraph of Article 146 provides:

The obligation on the High Contracting Parties to search for persons accused to have committed grave breaches imposes an active duty on them. As soon as a Contracting Party realizes that there is on its territory a person who has committed such a breach, its duty to ensure that the person concerned is arrested and prosecuted with all speed. The necessary police action should be taken spontaneously, therefore, not merely in pursuance of a request from another State.⁹⁵

While this excerpt from the commentary makes it clear that this obligation is an active duty that should be acted upon spontaneously and with all speed, the second sentence interjects an undefined geographic dimension to the obligation. This language fails to clarify whether the second sentence is an example of the implementation of the obligation, or whether it is intended to suggest a geographic limitation on the obligation of a State party to search for and arrest persons suspected of grave breaches - notwithstanding the lack of any textual geographic limitation in common Article 49/50/129/146. Scholars and military manuals which discuss this obligation to search for and arrest persons suspected of grave breaches do not identify or even suggest any geographic limitations.⁹⁶ To the contrary, in one recent text on the importance of enforcing the rule of law in the aftermath of the 1991 Persian Gulf War, one scholar made the following conclusions:

One important point concerning war crimes trials in the Gulf crisis does not seem to be generally understood. That is, under the 1949 Geneva Conventions ... all States Parties to the Conventions ... are currently obligated to search out persons who have committed "grave breaches" of the Conventions and to either try them or extradite them for trial pursuant to the Conventions. This obligation is a major procedural mechanism under the Conventions for enforcement of their important humanitarian principles. The obligation applies to all States Parties whether or not they were parties to the conflict or the "grave breaches" took place in their jurisdiction, and it applies now with no need for further legal predicates.⁹⁷

Futhermore, upon signing the four Geneva Conventins of 1949, no state made a reservation with regard to this textually unlimited obligation.⁹⁸

Common Article 1 strongly supports the interpretation of common Article 49/50/129/146 that a state's obligation to search for and arrest persons suspected of grave breaches is universal and not limited to its own national territory. This common article provides that state parties "undertake to respect and to ensure respect for the present Convention in all its circumstances."⁹⁹ The ICRC commentary to this common article emphasizes that this solemn obligation of a state party "to ensure respect" for the four Geneva Conventions of 1949 extends to "all those over whom it has authority," and that state parties "should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally."¹⁰⁰

The four Geneva Conventions of 1949 set forth one method of ensuring respect for their provisions by delineating certain acts that are punishable as grave breaches¹⁰¹ and then by imposing an absolute duty on state parties to prosecute those grave breaches.¹⁰² Since the deterrent value of any prosecution is fundamentally dependent upon the certainty that a given crime will be detected and that the criminal actor will be apprehended and prosecuted,¹⁰³ an obligation to prosecute must encompass an obligation to search for and arrest to be effective. Accordingly, a duty under common Article 1 "to ensure respect" for the four Geneva Conventions of 1949 in all circumstances and an absolute dute to prosecute grave breaches includes the obligation upon a state party to search for and arrest persons suspected of grave breaches in all territories where the state is authorized by international law to exercise jurisdiction. In the context of general human rights conventions, some scholars have taken a similar position that "the duty to ensure rights implies a duty to prosecute violators"¹⁰⁴ and that states should take "immediate and effective steps ... to bring to justice any persons" suspected of offenses.¹⁰⁵

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1005&context=djcil