The Prohibition of Torture: Absolute Means Absolute

By Rodley, Nigel S. | Denver Journal of International Law and Policy, Spring 2006 | Go to article overview

The Prohibition of Torture: Absolute Means Absolute


Rodley, Nigel S., Denver Journal of International Law and Policy


I. INTRODUCTION

      Our values as a Nation, values that we share with many nations in
   the world, call for us to treat detainees humanely, including those
   who are not legally entitled to such treatment.... As a matter of
   policy, the United States Armed Forces shall continue to treat
   detainees humanely.... (1)

These seemingly encouraging words, purporting to reaffirm the best humane traditions of the United States and other nations, are in fact, a high-profile representation of a serious and sustained assault on basic legal values previously asserted by the United States and many other nations. For the words unmistakably assert a legal fight not to treat at least some detainees humanely. If that is so for the United States, it is also the case for other nations, whether or not they share the United States' values as a nation.

The statement was made on the basis of legal opinions emanating from, and signed by, political appointees in the Department of Justice's Office of Legal Counsel (OLC), opinions at least partly contested by the Department of State's Legal Adviser's office. (2) Several subsequent opinions from the OLC continued the legal construct that was calculated to allow the military and/or the Central Intelligence Agency (CIA), or similar bodies, to take off the proverbial gloves. (3) The most notorious of these was an OLC memorandum of August 1 2002, specifically dealing with interrogation practices (2002 Interrogation Memorandum). (4) They were supplemented by a 2003 Department of Defense (DoD) Working Group Report, also apparently finalized by politically appointed lawyers over the strenuous objections of the career lawyers, notably in the various Judge Advocate General's offices. (5) There was a partial attempt to undo the damage created by the 2002 Interrogation Memorandum; it was replaced by a December 30, 2004 memorandum (2004 Interrogation Memorandum). (6) It is not clear how valid the DoD Working Group Report remains now that its chief legal inspiration has been withdrawn. (7)

In this paper, I shall set out the legal arguments according to which humane treatment of all detainees is indisputably required by international law, both international humanitarian law applicable in armed conflicts and international human rights law. (8) In the process, I shall seek to refute what I take to be the key arguments raised by the U.S. government's lawyers. These arguments will apparently follow a strategy, according to which, either the relevant treaty does not apply to these detainees, or the practices at issue do not constitute torture.

I must make two preambular points. Unlike some, I do not view the atrocities of September 11, 2001 as just another set of terrorist acts of the sort much of the world has had to endure in recent decades. The images and reality behind them will haunt us for decades, maybe centuries. They are the stuff of evil. The scale of the attacks, their enormity, places them on a substantially different scale from prior situations characterized by terrorism. Yes, other societies may have lost more people in facing ruthless terrorist enemies--internal or external--over a protracted period, but precisely the fact that the perpetrators of 9/11 could destroy in a single hour lives and property that other terrorist movements have taken years to destroy makes them an enemy requiring maximum resistance, provided that the resistance is within the law.

My second preambular point relates to the interrogation practices that have been the subject of national and international concern. It would not be appropriate for me, as a member of the Human Rights Committee established under the International Covenant on Civil and Political Rights, to address contested matters of fact. Nor is it necessary to my purpose, which is to elucidate the relevant legal norms. So I shall not comment on how aberrant or otherwise were the scandalous violations of Abu Ghraib, in respect of which some courts martial have taken place. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Prohibition of Torture: Absolute Means Absolute
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.