Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies

By Carter, Linda | Journal of National Security Law & Policy, July 1, 2012 | Go to article overview

Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies


Carter, Linda, Journal of National Security Law & Policy


The last few years have brought forth images that will, unfortunately, stay with us for a long time - Abu Ghraib, waterboarding, extraordinary renditions, and torture memos from the Bush administration. The harm from these actions to individuals, to international relations, and to the law is still unfolding. But there has also been time to begin an evaluation of what went wrong, and what can be done within the United States and internationally to remedy and to prevent abuses in the future.

While the United States has made some progress on undoing the harm from the legal interpretations of the Bush administration (such as the McCain Amendment prohibiting cruel, inhuman, or degrading treatment or punishment and President Obama's renunciation of certain interrogation techniques), the legal remedies for torture within the United States remain rather limited.

Among other approaches, the convictions in Italy of American and Italian intelligence agents for an abduction that resulted in a rendition to Egypt are a significant and needed part of the accountability for torture. The mixture of Italian and American agents and three countries is also indicative of another important fact to keep in mind. Neither the war on terror nor torture respects borders. A multinational effort is essential to achieve accountability.

In this article, I will address two questions related to definitions and accountability. First, why is there a need for a consistent definition? One lesson from the Bush administration torture memos is the danger of differing definitions. This question will be explored by comparing the U.S. approach with that of the International Criminal Tribunal for the former Yugoslavia (ICTY). Other places to look for definitions include other national laws and international bodies monitoring torture issues. Some examples from those sources will also be discussed. The second question is: What are the current limitations on available remedies that impede consistent accountability for torture? In discussing this question, I will examine criminal and civil options in the United States and in the international criminal tribunals as examples of what we have and what we lack.

The first section will provide background information on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, statutory law in the United States, and interpretations in the jurisprudence of the ICTY. The definitional differences will be explored, including the saga of the memos from the Bush administration. In particular, the discussion will focus on mens rea, which has not been analyzed in the same depth as the definition of torture, but which is a powerful element in accountability. The second section will explain howthe definitional differences create problems, with a focus on international relations and accountability. In the third section, criminal and civil accountability mechanisms and limitations on those vehicles will be explored. In addition, alternatives to criminal or civil actions directly based on torture will be examined. These include prosecutions for underlying or related conduct, such as kidnapping or aggravated assault. This section will conclude with observations about next steps to take toward greater consistency and accountability.

Two preliminary observations should be kept in mind as the issues are discussed. First, criminal prosecutions for torture arise in different types of crimes. National jurisdictions are likely to have a crime that is labeled "torture." In the international criminal tribunals, however, there is no independent crime of torture. Instead, torture may be punished as a crime against humanity or as a war crime. The acts that constitute torture might also be penalized in national jurisdictions as assault, maltreatment of prisoners, murder, and similar more common crimes. It is important to remember that, when we talk about "torture," there are multiple crimes that might cover the conduct. …

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

Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies
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.