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Misinterpreting torture under international law

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发表于 1/18/2018 13:20:53 | 显示全部楼层 |阅读模式
Misinterpreting the prohibition of torture under international law
Misinterpreting the Prohibition of Torture under International Law: The Office of Legal Counsel Memorandum, Rouillard, Louis-Philippe F.
                LOUIS-PHILIPPE F. ROUILLARD*
INTRODUCTION  .......................................................................  10
I. THE LEGAL STATUS OF TORTURE UNDER TREATY
    LAW AND CUSTOMARY INTERNATIONAL LAW ...... 12
II. THE OFFICE OF LEGAL COUNCIL NARROWS THE
    DEFINITION OF TORTURE IN ORDER TO EXPAND
    IT SUSE   .................................................................................   23
    A. IRELAND V. UNITED KINGDOM ............................................ 24
    B. PUBLIC COMMITTEE AGAINST TORTURE IN ISRAEL V. ISRAEL .... 28
III. 1978-1996: JUDICIAL RETICENCE AND THE "SPECIAL
    STIGMA" OF TORTURE LIMITS DEVELOPMENT OF
    CASE LAW POST-IRELAND ............................................. 30
IV. RECONSIDERATION AND EXPANSION OF THE
    DEFINITION OF TORTURE .............................................. 34
V. TORTURE IS NOT THE ANSWER: ARGUMENTS
    AGAINST JUSTIFIED DEROGATION .............................. 36
    A. NECESSITY DOES NOT OUTWEIGH HUMAN RIGHTS
       PROTECTIONS ....................................................................  37
    B. LACK OF IMMINENT THREAT PRECLUDES SELF-DEFENSE
       JUSTIFICATION  ................................................................... 38
     C. THE MORAL PRICE OF TORTURE Is Too HIGH FOR
        MODERN SOCIETY TO PAY ................................................. 39
      CONCLUSION   ...........................................................................  40
                        INTRODUCTION
    When human rights clash with the necessities of State security, it becomes difficult to view torture from a dispassionate perspective. Even known civil libertarians strengthen their opinions, and the limits of the permissible become more flexible. Such is the case with torture under   international law, and nothing illustrates this contradiction as clearly as Re: Standards of   Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A ("Standards of Conduct Memorandum "),[1] a memorandum composed by the U.S. Department of Justice's Office of Legal Counsel. Through the prism of Sections 2340[2] and 2340A[3] of Title 18 of the United States Code, the memorandum drafters seek to define and interpret what constitutes torture. The Standards of Conduct Memorandum is a response to a request for an opinion by the Central Intelligence Agency on the legal norms applicable to methods of interrogation involving suspected terrorists.[4]
    In response to this request, the Office of Legal Counsel offered the opinion that there are circumstances when self-defense and necessity permit the use of force to defend another person and that if "a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate Section 2340A, he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network.[5] The permissibility of such conduct is based upon the advice of the Office of Legal Counsel that the threshold of what constitutes torture is much higher than mere cruel, inhuman, or degrading treatment, which are  collectively referred to as "ill treatment."[6]
    In view of the ongoing war on terrorism, the occupation of Iraq, and the continuing peacemaking presence in Afghanistan, there is paramount value in examining the reach of the prohibition of torture under international law. For that reason, this article will examine the notions of what constitutes torture under international law and whereby derogation from the prohibition on torture might be justified.
    Part I explains the applicable treaty and customary law defining torture in international law, providing the background for Part II, which establishes the legal reasoning used in the Standards of Conduct Memorandum. Part III deconstructs this reasoning based on the substance of Ireland v. United Kingdom and Public Committee Against Torture in Israel v. Israel. Part IV examines the modem definition of what constitutes torture, setting the stage for the analysis in Part V of whether the prohibition of torture is absolute in international law.
    Based on historic and recent case law, as interpreted in light of applicable treaty law, I conclude that the threshold of what constitutes torture under international law is much lower than what has been submitted by the Office of Legal Counsel and that, even under the proposed standards, ill treatment is no more permissible under international law than torture itself.


[1] 21 Am. U. Int'l L. Rev. 9 (2005-2006) [ 34 pages, 9 to 42 ]
* Captain (Retired), Canadian Forces. LL.L. University of Ottawa, 1996; MA War Studies, Royal Military College of Canada, 1998; BMASc, Royal Military College of Canada, 2000; LL.M., University of Ottawa, 2003; Dipl6me d'&tudes europ6ennes et internationales, Institut de recherche et d'enseignement en relation internationals et europ~enne (IRERIE), 2003. Ph.D. candidate in international law at Pdzmdny Pkter Catholic University and Ph.D. candidate in political sciences at the IRERIE.
See Memorandum from U.S. Department of Justice, Office of Legal
Counsel, Office of the Assistant Attorney General, to Alberto R. Gonzales,
Counsel to the President, Re: Standards of Conduct for Interrogation Under 18
U.S.C. §§ 2340-2340A, at 1 (Aug. 1, 2002) [hereinafter Standards of Conduct
Memorandum], available   at http://www.washingtonpost.com/wp-srv/nation/
documents/dojinterrogationmemo20020801.pdf (concluding that, in the context of
conduct of interrogation outside the United States, acts inflicting or intending to
inflict severe mental or physical pain or suffering must be "of an extreme nature"
to rise to the level of torture within the meaning of the Convention Against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment).

[2] 18 U.S.C. 2340 (2000) (defining "torture," as well as the various scenarios
constituting "severe mental pain or suffering").

[3] 18 U.S.C. 2340A (2000) (putting forth the punishment for acts of torture
and explaining when the United States has jurisdiction to punish such acts),
amended by United and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, §
81 l(g) (adding that anyone conspiring to commit torture shall be subject to the
same penalties as one committing or attempting to commit torture).

[4] See Toni Locy & Thomas Frank, Gonzales 'Troubled and Offended' by
Abuse, USA TODAY, Jan. 7, 2005, at 2A (reporting that Gonzales later said that he
could not recall whether the CIA asked him for guidance on the interrogation
tactics). The Standards of Conduct Memorandum was sent to Gonzales by
Assistant Attorney General Jay Bybee. Id.

[5] Standards of Conduct Memorandum, supra note 1, at 46.

[6] Id. at I (concluding that some cruel, inhuman, or degrading treatment may
not constitute torture when the produced pain and suffering does not meet the
requisite intensity).



 楼主| 发表于 1/18/2018 13:22:44 | 显示全部楼层
     I. THE LEGAL STATUS OF TORTURE UNDER
             TREATY LAW AND CUSTOMARY
                    INTERNATIONAL LAW
    There cannot be any doubt that torture is prohibited under international law. That much is clear from both international humanitarian law and international human rights law perspectives. As a notion of international humanitarian law, the customary norms regarding torture evolved in the latter part of the nineteenth and the early twentieth century[1] and have been widely accepted, both in opinion juris and in practice by States before being codified in the four Geneva Conventions of 1949[2] and again in later additional protocols to the Geneva Conventions.[3] At the core of this body of law is Article 3--common to the four Geneva Conventions of 1949-which presents a core of rights that are applicable as much to international armed conflicts as to non-international armed conflicts. This core contains at its heart the prohibition against torture, regardless of the status of the persons concerned, whether they are combatants or non-combatants, including illegal combatants such as spies and saboteurs.[4] This notion is so well entrenched in the corpus juris of international law that its status is known and acknowledged as erga omnes obligations for States, clearly defined as one owed by a State to all members of the international community, and deemed as having acquired the status of jus cogens.[5] During international armed conflicts, all prisoners of war, enemy aliens, spies, saboteurs, illegal combatants, and indeed enemy combatants, are included in this notion.[6]
    However, the application of this prohibition of torture in times of peace or periods of tension and internal tribulation, including states of emergency, fall within the realm    of international human rights law. It is therefore necessary to define torture and its reach under international instruments applicable to all such situations.
    The document known as the "International Bill of Human Rights"[7] contains the basic elements of the definition and scope of the application of torture, starting with Article 5 of the Universal Declaration of Human Rights ("Universal Declaration").[8] While the legal force of a U.N. General Assembly resolution remains arguable,[9] the principles enumerated in the Universal Declaration provide the foundation of subsequent international[10] and regiona[11] instruments prohibiting torture, many retaking the original disposition verbatim.[12] From their reading, it clearly appears that the prohibition of torture is far-reaching, covered as much in the regional as in the universal human rights systems.
    The prohibition of torture under treaty law extends to customary law as a norm of jus cogens, both in matters related to international humanitarian law and international human rights law.[13] This peremptory legal norm is deemed fundamental enough to preclude State contravention.[14]
    The expansive body of prohibitive treaty law and customary international law would seem to preclude any debate on torture and render hopeless those arguments favoring the use of stronger measures of interrogation. Yet, the argument is made that measures of much vigor are not to be deemed torture. The explanation is rather simple: while torture is universally prohibited, the definition of what constitutes torture remains very controversial, as "each perpetrator seeks to define its own behavior so as not to violate the ban."[15]
    This is explained, in part, by the entitlement given in the universal and regional instruments applicable to the prohibition of torture, but also to the definition of torture itself and its interpretation by different courts and jurisdictions over time. The basis of this difference of interpretation rests in the initial adoption, in 1975, of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Declaration Against Torture"), which, under Article 1, defines torture as:
     1.... [Any act by which severe pain or suffering, whether
     physical or mental, is intentionally inflicted by or at the
     instigation of a public official on a person for such purposes
     as obtaining from him or a third person information or
     confession, punishing him for an act he has committed or is
     suspected of having committed, or intimidating him or other
     persons. It does not include pain or suffering arising only
     from, inherent in or incidental to, lawful sanctions to the
     extent consistent with the Standard Minimum Rules for the
     Treatment of Prisoners.
     2. Torture constitutes an aggravated and deliberate form of
     cruel, inhuman or degrading treatment or punishment.[16]
   Due to its non-binding nature, this declaration proved largely ineffective and prompted the redaction of a convention to have an effective mechanism by which to prohibit torture.[17] When the codification of this General Assembly declaration came to pass in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Convention Against Torture"), it adopted instead the following definition of torture:
     1 .... [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.
     2. This article is without prejudice to any international
     instrument or national legislation which does or may contain
     provisions of wider application.[18]
   While the intentional infliction of severe pain or suffering is a prerequisite under both conventions, the Convention Against Torture departs from the wording of the Declaration Against Torture in two key areas. The intentional conduct under the Convention Against Torture extends to "one of a broad range of illicit political purposes," whereas the Declaration Against Torture was limited to "one of several illicit political purposes.[19] Moreover, the Declaration Against Torture required that such illicit conduct occur "by or at the instigation of government officials," while the same element under the Convention Against Torture is met by governmental consent or acquiescence.[20]
    These revisions widened the definition of torture by applying it to a larger scope of actions. Indeed, the notion of discrimination found in the Convention Against Torture expanded the definition of torture to encompass requisite acts committed for discrimination "of any kind." Surely this expansion includes hate crimes as much as repression through terror by the use of torture "pour encourager les autres," a reputedly effective and much schooled method of holding onto power by 'Presidents for Life' everywhere.[21] Furthermore, the Convention Against Torture's inclusion of cases where consent or acquiescence is given by persons acting in an official capacity even applies to undercover operatives.[22] Yet, the excision of the second paragraph--defining torture as an aggravated and deliberate form of ill treatment-muddled the ground, permitting the argument that since the difference is not expressly made in the Convention Against Torture, the parameters of torture and ill treatment remain open to interpretation.[23] This freedom   is what enables proponents of a permissive definition to claim that the threshold of conduct constituting torture is very high indeed; methods that might be labeled ill treatment do not necessarily amount to torture.
    Interestingly, few have focused on this difference in definitions, even though the Preamble of the Convention Against Torture refers in its first consideration to the previous declaration, clearly intending to make it an interpretative instrument of the convention itself, in conjunction with Article 55 of the U.N. Charter, Article 7 of the International Covenant on Civil and Political Rights ("ICCPR"), and Article 5 of the Universal Declaration.[24] While this interpretative qualification of the Declaration Against Torture might appear dangerously potent in feeding the argument that some vigorous methods qualifying as ill treatment could in fact be deemed torture, this fear is misplaced. Rather, the opposite should be eyed suspiciously. Not having a precise definition of torture allows proponents of a more forceful approach to interrogation to argue that their tactics do not qualify as torture and therefore are not actionable under national laws or international law.
    This proposition does not fully account for the notions in the Convention Against Torture. Proponents justify their circumvention of international norms and national legislation by arguing that since ill treatment is not torture, they can do it without fear of prosecution.[25] But under international law, their argument is based on an incorrect interpretation of the applicable norms, as Article 16 of the Convention Against Torture states:
     1. Each State Party shall undertake to prevent in any territory
     under its jurisdiction other acts of cruel, inhuman or
     degrading treatment or punishment which do not amount to
     torture as defined in article I, when such acts are committed
     by or at the instigation of or with the consent or acquiescence
     of a public official or other person acting in an official
     capacity. In particular, the obligations contained in articles
     10, 11, 12 and 13 shall apply with the substitution for
     references to torture of references to other forms of cruel,
     inhuman or degrading treatment or punishment.
     2. The provisions of this Convention are without prejudice to
     the provisions of any other international instrument or
     national law which prohibits cruel, inhuman or degrading
     treatment or punishment or which relates to extradition or
     expulsion.[26]
Under this definition, the instruction of law enforcement, military, and public officials against ill treatment;[27] the review of interrogation methods in order to prevent ill treatment;[28]the prompt and impartial investigations of complaints of ill treatment;[29] and the right of prisoners to complain and have their cases examined in earnest without fear of retribution[30] are all codified to include prevention and resolution of ill treatment as obligations of States. One may use the  wording of the Declaration Against Torture to interpret the meaning of torture in the Convention Against Torture as an aggravated and deliberate form of ill treatment. However, the use of ill treatment is no more condoned under international law than torture.[31] Just as a square is also a rectangle, torture is also ill treatment. Both are illegal and prohibited under international law.
    Some might argue that under customary law, ill treatment has not attained the status ofjus cogens and could therefore be resorted to in some circumstances. It is true that the status of jus cogens can be argued against for ill treatment.[32] However, it hardly matters when treaty law explicitly dictates applicable legal norms and outlines the duties of States that are parties to the treaty.[33] The Convention Against Torture does not provide for an obligation to prosecute perpetrators of ill treatment, but it does provide for prevention in general, as applicable throughout the convention.[34] Failing to take adequate measures to prevent ill treatment is therefore akin to abdicating international obligations.
    Still, some States argue that since there is no obligation to prosecute for the commission of ill treatment, it remains an acceptable method for extracting useful information from suspects without fear of lawsuits. This reasoning circumvents the prohibition of torture, protects perpetrators from prosecution, and effectively defeats the purpose of the Convention Against Torture[35] by ceding the moral high ground in favor of a pragmatic approach to interrogation.[36]


[1] See Convention Relative to the Treatment of Prisoners of War art. 2, July
27, 1929, 118 L.N.T.S. 343, 356, 47 Stat. 2021, 2031 ("Prisoners of war are in the
power of the hostile Power, but not of the individuals or corps who have captured
them. They must at all times be humanely treated and protected, particularly
against acts of violence, insults and public curiosity."); Convention II Respecting
the Laws and Customs of War on Land art. 4, July 29, 1899, 187 Consol. T.S. 429,
436, 32 Stat. 1803, 1812 ("Prisoners of war are in the power of the hostile
Government, but not in that of the individuals or corps who captured them. They
must be humanely treated."); Additional Articles Relating to the Condition of the
Wounded in War art. 11, Oct. 20, 1868, 138 Consol. T.S. 189, 193 ("Wounded or
sick sailors and soldiers, when embarked, to whatever nation they may belong,
shall be protected and taken care of by their captors.") (translation by author);
Convention for the Amelioration of the Condition of the Wounded in Armies in the
Field, Aug. 22, 1864, 129 Consol. T.S. 361; see also Institute of International Law,
The Laws of War on Land, art. 63 (Sept. 9, 1880), available at
d6dbc 125641e0032ec97?OpenDocument ("They must be humanely treated."). The
International Institute did not attempt to propose an international treaty, but merely
offered "to the governments a 'Manual' suitable as the basis for national legislation
in each State, and in accord with both the progress of juridical science and the
needs of civilized armies." Id. preface.

[2] Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S.
31 [hereinafter Convention for the Wounded]; Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter
Convention for the Wounded at Sea]; Geneva Convention Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135
[hereinafter Prisoner of War Convention]; Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75
U.N.T.S. 287 [hereinafter Convention to Protect Civilians].

[3] See Protocol Additional to the Geneva Conventions of 12 August 1949, and
  Relating to the Protection of Victims of International Armed Conflicts (Protocol I),
  June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of
  12 August 1949, and Relating to the Protection of Victims of Non-International
  Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609.

[4] Specifically, Article 3 in each convention states:
    In the case of armed conflict not of an international character occurring in the
    territory of one of the High Contracting Parties, each Party to the conflict
    shall be bound to apply, as a minimum, the following provisions: 1. Persons
    taking no active part in the hostilities, including members of armed forces
    who have laid down their arms and those placed hors de combat by sickness,
    wounds, detention, or any other cause, shall in all circumstances be treated
    humanely, without any adverse distinction founded on race, colour, religion
    or faith, sex, birth or wealth, or any other similar criteria. To this end, the
    following acts are and shall remain prohibited at any time and in any place
    whatsoever with respect to the above-mentioned persons: (a) violence to life
    and person, in particular murder of all kinds, mutilation, cruel treatment and
    torture; (b) taking of hostages; (c) outrages upon personal dignity, in
    particular humiliating and degrading treatment; (d) the passing of sentences
    and the carrying out of executions without previous judgment pronounced by
    a regularly constituted court, affording all the judicial guarantees which are
    recognized as indispensable by civilized peoples.
Convention for the Wounded, supra note 8, 6 U.S.T. at 3116, 3118, 75 U.N.T.S. at
32, 34; Convention for the Wounded at Sea, supra note 8, 6 U.S.T. at 3220, 3222,
75 U.N.T.S. at 86, 88; Prisoner of War Convention, supra note 8, 6 U.S.T. at 3318,
3320, 75 U.N.T.S. at 136, 138; Convention to Protect Civilians, supra note 8, 6
U.S.T. at 3518, 3520, 75 U.N.T.S. at 288, 290. Directly addressing "spies and
saboteurs," the Convention to Protect Civilians states:
Convention to Protect Civilians, supra note 8, art. 5, 6 U.S.T. at 3522, 75 U.N.T.S. at 292.

[5] See Robert K. Goldman, Trivializing Torture: The Office of Legal
Counsel's 2002 Opinion Letter and International Law Against Torture, 12 AM. U.
HUM. RTS. BRIEF 1 (2004) (observing that every State owes to all other countries
the obligations to prohibit torture, and this prohibition is "a peremptory norm
embodying a fundamental standard that no state can contravene").

[6] See Louis-Philippe F. Rouillard, The Combatant Status of the Guantanamo
Detainees, E. EUR. HUM. RTs. L.J., Sept. 2004, at 1, 10, available at
http://www.fwpublishing.net/Files/EEHRLJV1N2.pdf   (recounting  the  basic
principle of humanitarian law that "nobody should remain outside the law," and
noting how Article 5 of the Convention to Protect Civilians makes clear that all
civilians, regardless of participation in hostile activities to the occupying regime,
are entitled to the protections of this Convention).

[7] . The International Bill of Human Rights is generally understood to include
the Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR,
3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948) [hereinafter Universal
Declaration], International Covenant on Civil and Political Rights, G.A. Res. 2200,
at 52, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966)
[hereinafter ICCPR], International Covenant on Economic, Social and Cultural
Rights, G.A. Res. 2200, at 49, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc.
A/6316 (Dec. 16, 1966) [hereinafter ICESCR], Optional Protocol to the
International Covenant on Civil and Political Rights, G.A. Res. 2200, at 59, U.N.
GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966), and the
Second Optional Protocol to the International Covenant on Civil and Political
Rights, Aiming at the Abolition of the Death Penalty, G.A. Res. 128, at 206, U.N.
GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (Dec. 15, 1989). See, e.g.,
United Nations, Office of the High Commissioner for Human Rights, Fact Sheet
No. 2 (Rev. 1), The International Bill of Human Rights, available at
http://www.unhchr.ch/html/menu6/2/fs2.htm. See generally U.N. Econ. & Soc.
Council [ECOSOC], Comm. on Hum. Rts., Status of the International Covenants
on Human Rights: Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, Annex,
U.N. Doc. E/CN.4/1985/4 (Sept. 28, 1984).

[8] Universal Declaration, supra note 13, art. 5 ("No one shall be subjected to
torture or to cruel, inhuman, or degrading treatment or punishment.").
Where in occupied territory an individual protected person is detained as a
    spy or saboteur, or as a person under definite suspicion of activity hostile to
    the security of the Occupying Power, such person shall, in those cases where
    absolute military security so requires, be regarded as having forfeited rights of
    communication under the present Convention. In each case, such persons
    shall nevertheless be treated with humanity, and in case of trial, shall not be
    deprived of the rights of fair and regular trial prescribed by the present
    Convention. They shall also be granted the full rights and privileges of a
    protected person under the present Convention at the earliest date consistent
    with the security of the State or Occupying Power, as the case may be.

[9] Summarizing the recognized status of the Universal Declaration, the
Restatement (Third) of Foreign Relations Law of the United States asserts:
   The binding character of the Universal Declaration of Human Rights
   continues to be debated .... but the Declaration has become the accepted
   general articulation of recognized rights. With some variations, the same
   rights are recognized by the two principal covenants, the Covenant on Civil
   and Political Rights and the Covenant on Economic, Social and Cultural
   Rights.
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §
701, reporters note 6 (1987).

[10] See ICCPR, supra note 13, art. 7 ( "No one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment."); Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452, at 91, U.N.
GAOR, 30th Sess., Supp. No. 34, U.N. Doc. A/10034 (Dec. 9, 1975) [hereinafter
Declaration Against Torture] (requiring States to criminalize acts of torture, as well
as "participation in, complicity in, incitement to or an attempt to commit torture");
Recommendations of the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, E.S.C. Res. 663C, at 11, ECOSOC, 24th
Sess., Supp. No. 1, U.N. Doc. E/3048 (July 31, 1957) (approving the Standard
Minimum Rules for the Treatment of Prisoners, adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders in
1955, which set forth a general framework addressing prisoner conditions and
matters concerning treatment, such as clothing and bedding, food, medical
services, and freedom of religious practice), amended by E.S.C. Res. 2076, at 35,
ECOSOC, 62d Sess., Supp. No. 1, U.N. Doc. E/5988 (May 13, 1977); Code of
Conduct for Law Enforcement Officials, G.A. Res. 169, at 186, art. 5, U.N.
GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (Dec. 17, 1979) ("No law
enforcement official may inflict, instigate or tolerate any act of torture or other
cruel, inhuman or degrading treatment or punishment, nor may any law
enforcement official invoke superior orders or exceptional circumstances such as a
state of war or a threat of war, a threat to national security, internal -political
instability or any other public emergency as a justification of torture or other cruel,
inhuman or degrading treatment or punishment."); Principles of Medical Ethics
Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection
of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, G.A. Res. 194, at 211, Annex, U.N. GAOR,
37th Sess., Supp. No. 51, U.N. Doc. A/37/51 (Dec. 18, 1982); Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.
Res. 46, at 197, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (Dec.
10, 1984) [hereinafter Convention Against Torture]; Convention on the Rights of
the Child, G.A. Res. 25, at 171, art. 37, U.N. GAOR, 44th Sess., Supp. No. 49,
U.N. Doc. A/44/49 (Nov. 20, 1989) ("States Parties shall ensure that: (a) No child
shall be subjected to torture or other cruel, inhuman or degrading treatment or
punishment."); Body of Principles for the Protection of All Persons Under Any
Form of Detention or Imprisonment, G.A. Res. 173, at 298, U.N. GAOR, 43d
Sess., Supp. No. 49, U.N. Doc. A/43/49 (Dec. 9, 1988); Basic Principles for the
Treatment of Prisoners, G.A. Res. 111, at 200, U.N. GAOR, 45th Sess., Supp. No.
49A, U.N. Doc. A/45/49 (Dec. 14, 1990); Declaration on the Elimination of
Violence Against Women, G.A. Res. 104, at 217, U.N. GAOR, 48th Sess. Supp.
No. 49, U.N. Doc. A/48/49 (Dec. 20, 1993); Draft Optional Protocol to the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, H.R.C. Res. 33, at 151, U.N. ESCOR, Comm'n on Hum. Rts., 58th
Sess., Supp. No. 3, U.N. Doc. E/CN.4/2002/200 (Apr. 22, 2002).

[11] . See American Declaration of the Rights and Duties of Man, O.A.S. Official
Rec., OEA/Ser. L./V./II.23, doc. 21, rev. 6 (1948), reprinted in Basic Documents
Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82,
doc. 6, rev.1, at 18, art. 1 (1992) ("Every human being has the right to life, liberty
and the security of his person."); American Convention on Human Rights, Nov.
22, 1969, art. 5, 1144 U.N.T.S. 144 (setting forth the right to humane treatment and
the specific treatment prohibited as a result of that right) [hereinafter American
Convention]; Inter-American Convention to Prevent and Punish Torture, Dec. 9,
1985, 67 O.A.S.T.S. 13 (defining torture, discussing State responsibilities to
prevent torture, and reviewing certain circumstances, such as war, that do not
justify acts of torture); Convention for the Protection of Human Rights and
Fundamental Freedoms art. 3, Nov. 4, 1950, Europ. T.S. No. 5 ("No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.")
[hereinafter European Convention]; Charter of Fundamental Rights of the
European Union, art. 4, 2000 O.J. (C 364) 1 (same); Draft Charter of Fundamental
Rights of the European Union, art. 4, July 28, 2000, Charter 4422/00, Covenant 45
(same); African Charter on Human and Peoples' Rights, art. 5, adopted June 27,
1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5, reprinted in 21 I.L.M. 58 (1982)
[hereinafter African Charter] ("All forms of exploitation and degradation of man
particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment
and treatment shall be prohibited.").

[12] See  NIGEL  RODLEY, THE     TREATMENT    OF  PRISONERS   UNDER
INTERNATIONAL LAW 71 (2d ed. 1999) (observing that all human rights treaties
containing provisions prohibiting torture reproduce the basic formula of Article 5
of the Universal Declaration).

[13] See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES §§ 102, 702 (recognizing torture and other cruel, inhuman, or degrading
treatment or punishment as part of customary law).

[14] See, e.g., Catherine M. Grosso, Note, International Law in the Domestic
Arena: The Case of Torture in Israel, 86 IOWA L. REv. 305, 308 (2000) (using the
absence of authorization for torture in all State's domestic laws to further support
the notion that torture is universally prohibited).

[15] Jeffrey F. Addicott, Into the Star Chamber: Does the United States Engage
in the Use of Torture or Similar Illegal Practices in the War on Terror?, 92 KY.
L.J. 849, 856 (2003/2004) (quoting RODLEY, supra note 18, at 74).


[17] See generally Evelyn Mary Aswad, Note, Torture by Means of Rape, 84
GEO. L.J. 1913, 1921-22 (1996) (discussing how the Declaration Against Torture,
though ineffective, contributed to the development of the legal distinction between
torture and ill treatment).

[18] Convention Against Torture, supra note 16, art. 1.

[19] Aswad, supra note 23, at 1922-23.

[20] Declaration Against Torture, supra note 16, art. 1; Convention Against
Torture, supra note 16, art. 1; see also Aswad, supra note 23, at 1922-23 (arguing
that the Declaration Against Torture's non-binding nature added to its
ineffectiveness).

[21] . See Convention Against Torture, supra note 16, art. 1, where it is
expressively written that coercion in order to intimidate the victim or a third person
is prohibited, despite being the modus operandi of dictators.

[22] . See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES § 702 (1987) (indicating that the prohibition against torture applies to all
those acting under the color of State law).

[23] . See Addicott, supra note 21, at 859 (noting that the Convention Against
Torture defines torture with clarity while exhibiting less care in defining ill
treatment).

[24] Convention Against Torture, supra note 16, pmbl.; U.N. Charter art. 55;
ICCPR, supra note 16, art. 7; Universal Declaration, supra note 13, art. 5.

[25] See Grosso, supra note 20, at 309 (asserting that authorities who make a
distinction between torture and ill treatment often point to the language of the
Convention Against Torture and the Universal Declaration, which indicate that the
two practices are in fact distinct, though neither intended the distinction to ever be
used as a justification for certain practices).

[26] Convention Against Torture, supra note 16, art. 16.

[27] See id. art. 10 (requiring training for any person "who may be involved in the custody, interrogation or treatment of any person subjected to any form of arrest").

[28] See id. art. 11 (making the review requirement applicable to all
"interrogation rules, instructions, methods and practices").

[29] See id. art. 12 (limiting the scope to those situations in which "there is
reasonable ground to believe that an act of torture has been committed").

[30] See id. art. 13 (requiring that the investigation be carried out promptly).

[31] See, e.g., Grosso, supra note 20, at 309 ("Both [the Convention Against
Torture and the Universal Declaration] strictly forbid both torture and ill
treatment.") (emphasis added).

[32] See Goldman, supra note 11, at 1 (acknowledging that while torture is
undoubtedly recognized as having attained the status of ajus cogens violation, the
status of ill treatment remains unclear)

[33] See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED
STATES § 331 (1987) (stating that unless a limited set of circumstances apply, a
State party is obligated to conform its behavior to the instrument to which it is a party).

[34] The Convention Against Torture's general requirements of prevention are
particularly prevalent in Articles 10-13. Convention Against Torture, supra note
16, arts. 10-13. But cf Addicott, supra note 21, at 861 (commenting that Article 16
of the Convention Against Torture does not require the criminalization of ill
treatment, nor does it require victims to be compensated, though the convention
requires both for torture).





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