Academic journal article Denver Journal of International Law and Policy

The Prohibition of Torture: Absolute Means Absolute

Academic journal article Denver Journal of International Law and Policy

The Prohibition of Torture: Absolute Means Absolute

Article excerpt


      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 (6) It is not clear how valid the DoD Working Group Report remains now that its chief legal inspiration has been withdrawn.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. …

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