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. …