What practices constitute torture?: US and UN standards

Human Rights Quarterly

Volumn 28, Issue 4, 2006, Pages 809-841

  Nowak, Manfred ^a,b,c  

^a UNIVERSITY OF VIENNA   (Austria)

^b Ludwig Boltzmann Institute of Human Rights (BIM)   (United States)

^c Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; INTERNATIONAL LAW; UNITED NATIONS;

NORTH AMERICA; UNITED STATES;

EID: 33751322966     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2006.0050     Document Type: Article

References (176)

1. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, art. 1, 16, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985) (hereinafter CAT).
2. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 7, 10, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) (ICCPR).
3. See, e.g., Marcy Strauss, Torture, 48 N.Y. L. SCH. L. Rev. 203 (2004)
4. see also Alan M. Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N.Y.U. L. Rev. 275 (2004).
5. On these questions, see Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, submitted in accordance with Assembly Resolution 59/182, U.N. GAOR, 60th Sess., Agenda Item 73(a), U.N. Doc A/60/316 (2005); see also Report of the Special Rapporteur on the question of torture, Manfred Nowak, U.N. ESCOR, Comm'n on Hum. Rts., 62nd Sess., Agenda Item 11(a), U.N. Doc. E/CN.4/2006/6, (2006); Report on the Situation of detainees at Guantanamo Bay, Submitted by the Chairperson-Rapporteur of the Working Group on Arbitrary detention, Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asthma Jahangir; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, U.N. ESCOR, 62nd Sess., Agenda Items 10, 11, U.N. Doc. E/CN.4/2006/120 (2006);
6. Manfred Nowak, Challenges to the Absolute Nature of the Prohibition of Torture and III-Treatment, 23 Neth. Q. Hum. Rts. 674 (2005).
7. See, e.g., Statement on United Nations International Day in Support of Victims of Torture, 40 Weekly Comp. Pres. Doc. 1167-68 (5 July 2004)
8. see also Consideration of Reports Submitted by State Parties Under Article 19 of the Convention, Second periodic report of State parties due in 1999, U.N. Comm. Against Torture, ¶ 5, U.N. Doc CAT/C/48/ Add.3 (2005).
9. Id. 6.
10. 18 U.S.C. § 2340A (2006).
11. Id. § 2340A(a).
12. Id. § 2340(1).
13. Memorandum from Jay S. Bybee, Assistant Attorney-General for the Office of Legal Council at the US Department of Justice, to Alberto R. Gonzales, Counsel to the President, (1 Aug. 2002) (hereinafter referred to as Bybee Memorandum).
14. For a critical analysis, see, e.g., Louis-Philippe F. Rouillard, Misinterpreting the Prohibition of Torture Under International Law: The Office of Legal Counsel Memorandum, 21 Am. Univ. Int'l L. Rev. 9 (2005)
15. see also Robert K. Goldman, Trivializing Torture. The Office of Legal Counsel's 2002 Opinion Letter and International Law against Torture, 12 No. 1 Hum. Rts. Brief 1 (2004).
16. Bybee Memorandum, supra note 10.
17. Goldman, supra note 10, at 5.
18. Bybee Memorandum, supra note 10.
19. Id. at 6.
20. Id.
21. Id. at 46. The Bybee Memorandum went on to state: 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. In that case, we believe that he could argue that his actions were justified by the executive branch's constitutional authority to protect the nation from attack.
22. Id. at 14.
23. Id at 21
24. see also Summary Records of the Commission on Human Rights, U. N. ESCOR, Comm'n on Hum. Rts., U.N. Doc. E/CN.4/1314/Add.1 (1978)
25. J. Herman Burgers & Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 41, 45 (1988).
26. Bybee Memorandum, supra note 10, at 22.
27. Memorandum, from William J. Haynes II, General Counsel Department of Defense, on "Counter-resistance Techniques" to Secretary of Defense Donald Rumsfeld, (27 Nov. 2002) (hereinafter December Memorandum). Secretary Rumsfeld approved the techniques in the December Memorandum on 2 December 2002.
28. Memorandum from Alberto Mora, General Counsel of the Navy to the Inspector General, Department of the Navy, subject: Statement for the Record: Office of General Counsel Involvement in Interrogation Issues, Ref: NAVIG Memo 5021 Ser 00/017 (18 June 2004) (hereinafter Mora Memorandum): As described in the memo and supporting documentation, the interrogation techniques approved by the Secretary should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture.
29. Id. at 6. [T]he interrogation techniques authorized in the December 2nd Memo constituted, at a minimum, cruel, inhuman, and degrading treatment. Further, depending on circumstances, the same treatment may constitute torture.
30. Id. at 12.
31. In his Memorandum, Mora described in detail his various efforts to convince Secretary Rumsfeld and others in the Department of Defense to withdraw the 2 December memo. Id. at 1-15.
32. Memorandum from Donald Rumsfeld, Secretary of Defense, United States Department of Defense, for Commander USSouthcom, subject: Counter-Resistence Techniques, (15 Jan. 2003).
33. Memorandum from Donald Rurnsfeld, Secretary of Defense, United States Department of Defense, for Commander USSouthcom, subject: Counter-Resistence Techniques in the War on Terrorism (16 Apr. 2 003).
34. See, e.g., Report on the Situation of detainees at Guantanamo Bay, supra note 4, ¶ ¶ 49-52.
35. Mora Memorandum, supra note 21, at 16, 19.
36. Id. at 17.
37. Id. at 20, n. 14.
38. Id. at 17, n. 11.
39. Memorandum from Daniel Levin, Assistant Attorney-General, U.S. Department of Justice, Office of Legal Counsel, for James B. Comey, Deputy Attorney General, subject: Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A, (30 Dec. 2004) (hereinafter Levin Memorandum).
40. See, e.g., Kathleen Clark & Julie Mertus, Torturing the Law. the Justice Department's Legal Contortions on Interrogation, Wash. Post, 30 June 2004, at B3
41. R. Jeffrey Smith, Slim Legal Grounds for Torture Memos, Wash. Post, 4 July 2004, at A12
42. Anthony Lewis, Making Torture Legal, N.Y. Rev. of Books, 15 July 2004.
43. See also the harsh criticism by Goldman, supra note 10, at 4: It would be difficult to construct legal arguments that could be more exquisitely antithetical to and utterly destructive of the underlying object and purpose of the Torture Convention than those contained in the Office of Legal Counsel's opinion. By virtually sanctioning conduct equivalent to torture under the treaty and effectively laying out a roadmap of how to shield torturers from criminal prosecutions, the legal opinion virtually renders meaningless the United States' adherence to that instrument.
44. Levin Memorandum, supra note 30, at 2, 5.
45. Id. at 14, n.24.
46. Id. at 17.
47. Id. at 6
48. see also Rouillard, supra note 10, at 39.
49. See Report on the Situation of detainees at Guantanamo Bay, supra note 4, ¶ 48.
50. Consideration of Reports Submitted by State Parties Under Article 19 of the Convention, Second periodic report of State parties due in 1999, supra note 5, ¶ 78.
51. In the original version of the US report dated 29 June 2005, more than three months after the alleged determination by the DoD, this sentence was not included; see id. 63.
52. Detainee Treatment Act, Pub. L. 109-48, 119 Stat. 2739, (2005) (hereinafter DTA).
53. Id. § 1002(a).
54. See Julian E. Barnes, Army Manual to Skip Geneva Detainee Rule, L.A. Times, 5 June 2006, available at http://www.latimes.com/news/ nationworld/nation/la-na-torture5jun05,0,877738,full.story.
55. DTA, supra note 39, § 1003(a).
56. DTA, supra note 39, § 1005 (e)(1).
57. Prior to publication of this article, the United States Supreme Court delivered an opinion in Hamdan v. Rumsfeld. See 548 U.S. (2006), U.S. Lexis 5185. The Court held that § 1005 (e)(1) of the DTA bars federal court jurisdiction only with respect to claims filed after the effective date of the Act. Consequently, federal courts retain jurisdiction to hear cases pending during enactment. In response to Hamdan, the Pentagon released a memorandum instructing Department of Defense personnel to review "relevant directives, regulations, policies, procedures and practices ... to ensure they comply with Common Article 3."
58. See US Department of Defense, Office of the Secretary of Defense, Memorandum for Secretaries of the Military Department (7 July 2006). However, the Bush administration recently urged Congress to pass legislation that would narrowly define the rights granted to detainees by Common Article 3. Kate Zernike, White House Prods Congress to Curb Detainee Rights, N.Y. Times, 13 July 2006, at A1. Consequently, the status of detainee rights under Common Article 3 of the Geneva Convention is unclear as of the date of publication.
59. CAT, supra note 1, art. 1(1).
60. Id. art. 16(1).
61. On the Travaux Préparatoires, see Burgers & Danelius, supra note 18.
62. CAT, supra note 10, art. 1(1).
63. Draft International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted by Sweden, U.N. ESCOR, Comm'n on Hum. Rts., U.N. Doc. E/CN.4/1285, art. 1, (1978) (hereinafter Swedish Draft).
64. Draft International Convention against Torture submitted to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities act by IAPL, U.N. ESCOR, Comm'n on Hum. Rts., U.N. Doc. E/ CN.4/NGO/213 (1978).
65. Id art. 2.
66. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 9 Dec. 1975, G.A. Res. 3452 (XXX), U.N. GAOR, 30th Sess., 2433d plen. mtg., Annex, U.N. Doc. A/RES/3452(1975)
67. reprinted in Basic Documents on Human Rights 35 (Ian Brownlie ed., 3d ed. 1992) (hereinafter UN Declaration against Torture).
68. The Greek Case, 1969 Y.B. Eur. Conv. on H.R. 461 (Eur. Comm'n on H.R.).
69. See Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 14 (1999)
70. Chris Ingelse, The UN Committe against Torture: An Assessment 208 (2001).
71. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, U.N. G.A. Res. 39/46 Annex, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/708 (1984).
72. See Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, Summary Prepared by the Secretary-General in Accordance with Commission Resolution 18, U.N. ESCOR, Comm'n on Hum. Rts., U.N. Doc E/CN.4/1314/Add.1 (1979).
73. Id.
74. Greek Case, supra note 52, at 186: It is plain that there may be treatment to which all these descriptions apply, for all torture must be inhuman and degrading treatment, and inhuman treatment also degrading. The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable. The word "torture" is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment.
75. Report of the Commission of 25 January 1976, App. No. 23-1, Eur. Comm'n Hum. Rts. Dec. & Rep. Ser. B. 410 (1976).
76. Ireland v. UK, 2 Eur. Ct. of H. R. Ser.A. 25, §167 (1978).
77. Id.
78. See, e.g., R.J.Spjuz, Torture Under the European Convention on Human Rights, 73 Am. J. Int. L. 267, 271 (1979).
79. But see Boulesbaa, supra note 53
80. see also Ingelse, supra note 53.
81. The list of purposes in Article 2(2) ECHR might even justify lethal use of force by the police. But see Nigel S. Rodley, The Treatment of Prisoners Under International Law 84 (2d ed. 1999), according to whom "the direct benefit of the recipient" seems to be the only legitimate objective of intentionally inflicting severe pain or suffering on a person.
82. On the discussion about the justifiability and proportionality in relation to inhuman and degrading treatment in reaction to the Commission's holding in the Greek Case see, e.g., Report on Torture, 35 (2d Duckworth & Amnesty International Publications 1975).
83. Burgers & Danelius, supra note 18, at 118.
84. See Nigel Rodley, The Definition(s) of Torture in International Law, 55 Cur'nt Leg. Probs. 467, 491 (2002),"[s]o I maintain my preference for suppressing the element of aggravation in the understanding of the notion of torture."
85. Dragan Dimitrijevic v. Serbia and Montenegro, Communication No. 207/ 2002, U.N. Doc. CAT/C/33/D/207/2002, (2004).
86. Id.
87. Id. § 5.3.
88. Id. § 6.
89. Jovica Dimitrov v. Serbia and Montenegro, Communication No. 171/2000, U.N. Doc. CAT/C/34/D/171/2000 (2005).
90. Id § 7.1.
91. Id.
92. Id.
93. Danilo Dimitrijevic v. Serbia and Montenegro Communication No. 172/2000, U.N. Doc. CAT/C/35/D/172/2000 (2005).
94. Id. § 7.1.
95. Id. § 7.2.
96. Hajrizi Dzemajl et al. v. Yugoslavia, Communication No. 161/2000, U.N. Doc. CAT/C/29/D/161/2000 (2002).
97. Id. § 9.2.
98. But see id. at Annex for the dissenting opinion of Committee members Marino and Gonzáles Poblete who stress the particular severity of the suffering.
99. See also Rodley, The Definition(s) of Toture, supra note 65, at 83
100. Ingelse, supra note 53, at 226.
101. But cf. Addendum: Consideration of the Reports of States Parties Under Article 19 of the Convention, Second periodic reports of States parties due in 1996, Israel, U.N. Comm. Against Torture, ¶ 5, U.N. Doc. CAT/C/33/Add.2/Rev.1, (1997).
102. Id. ¶ 9.
103. Id.
104. Id.
105. Id ¶ 10.
106. Summary of the Public Part of the 184th Meeting, U.N. Comm. Against Torture, 12th Sess., ¶ 4, U.N. Doc. CAT/C/SR.184 (1994).
107. Id. ¶ 4(b)
108. see also Summary of the Public Part of the 183rd Meeting, U.N. Comm. Against Torture, 12th Sess., U.N. Doc. CAT/C/SR.184 (1994)
109. see also Report fo the Committee Against Torture, U.N. GAOR, 49th Sess., Supp. No. 44, ¶ 168, U.N. Doc. A/49/44 (1994).
110. Addendum: Consideration of the Reports of States Parties Under Article 19 of the Convention, Second periodic reports of States parties due in 1996, Israel, supra note 81, ¶ 3.
111. CAT, supra note 1, art. 20.
112. Addendum: Report of the Committee Against Torture, U.N. GAOR, 48th Sess., ¶ 52, UN Doc A/48/44/Add.1 (1993)
113. Id.
114. Report of the Committee Against Torture, 25th Session (13-24 November 2000), 26th Session (30 April-18 May 2001), U.N. GAOR, 56th Sess., Supp. No. 44, ¶ ¶ 144-193, U.N. Doc. A/56/44 (2001).
115. Id. ¶ 185.
116. Id. ¶ ¶ 42-43.
117. Id. ¶ 177.
118. Id. ¶ 178.
119. Report on Mexico/Produced by the Committee under Article 20 of the Convention [Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]; and Reply from the Government of Mexico, U.N. Comm. Against Torture, 30th Sess., U.N. Doc. CAT/C/75 (2003).
120. Id. ¶ 218.
121. Id. ¶ ¶ 143-44.
122. Id. ¶ 165.
123. Report of the Committee Against Torture, U.N. GAOR, 59th Sess., ¶ ¶ 211-212, U.N. Doc. A/59/44(2004).
124. ICCPR, supra note 2.
125. General Comments on Articles of the Covenants, U.N. ESCOR, Comm. On Hum. Rts., ¶ 4, U.N. Doc. UCN.4/20/44 (1992)
126. see the analysis of the relevant case-law in Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 160 (2d ed. 2005).
127. El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, U.N. Doc. CCPR/C/50/D/440/1990 (1994).
128. See Summary Prepared by the Secretary General in Accordance with Commission Resolution 18 (XXXIV), U.N. ESCOR, Comm'n on Hum. Rts., ¶ 27, U.N. Doc. E/CN.4/1314 (1979).
129. See CAT, supra note 1, at Reservations and Understandings Upon Ratification, available at http://www.hri.ca/fortherecord1998/ documentation/reservations/cat.htm.
130. Burgers & Danelius, supra note 18, at 119, speak in this respect of an "unintended side-effect of the treatment."
131. This interpretation is based on the case law of the European Commission of Human Rights, see, e.g., Report of the Commission of 25 January 1976, supra note 58,
132. and has been confirmed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Delalic (1998) ICTY Case No IT-96-21-T, ¶ 442
133. see also Rodley, The Definition(s) of Torture, supra note 65, at 489
134. Lene Wendland, Association For the Prevention of Torture, A Handbook on State Obligations under the UN Convention Against Torture 28 (2002)
135. Malcolm D. Evans, Getting to Grips with Torture, 51 Int'l. & Comp. L.Q. 365 (2002)
136. Rome Statute of the International Criminal Court (1998), Part III, art. 30, according to which the purpose constitutes the only element to distinguish the war crime of torture from the war crimes of cruel and inhuman treatment.
137. See, e.g., Burgers & Danelius, supra note 18, at 118
138. see also Boulesbaa, supra note 53, at 27.
139. Summary Prepared by the Secretary General in Accordance with Commission Resolution 18 (XXXIV), supra note 117, ¶ 37.
140. Id. ¶ 34.
141. Summary Record of the 33rd Meeting, U.N. ESCOR, Comm'n on Hum. Rts, 41st Sess., ¶ 25, U.N. Doc. UCN.4/1984/SR.33 (1984).
142. Report of the Working Group on a Draft Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. ESCOR, Comm'n. on Hum. Rts., ¶ 27, U.N. Doc. UCNA/L.1470 (1979).
143. Report of the Secretary General, U.N. GAOR, 39th Sess., ¶ 21, U.N. Doc. A/39/499 (1984).
144. Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, art. 2 (entered into force 28 Feb. 1987), reprinted in BASIC Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 (1992).
145. See Boulesbaa, supra note 53, at 22.
146. Burgers & Danelius, supra note 18, at 118.
147. Id. at 119
148. see also Ingelse, supra note 53, at 211.
149. Burgers & Danelius, supra note 18, at 120
150. see also Rodley, The Definition(s) of Torture, supra note 65, at 484: "It is no accident that the purposive element of torture reflects precisely state purposes or, at any rate, the purposes of an organized political entity exercising effective power."
151. See also Charter of the Fundamental Rights of the European Union, 2000 O.J. (C364/01). Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.
152. Burgers & Danelius, supra note 18, at 149.
153. See also Ingelse, supra note 53, at 286.
154. Addendum: Report of the Committee Against Torture, U.N. GAOR, 48th Sess., ¶ 175, U.N. Doc. A/48/44 (1993).
155. Report of the Committee Against Torture, U.N. GAOR, 53rd Sess., Supp. No. 44, ¶ 49, U.N. Doc A/53/44 (1998).
156. Report of the Committee Against Torture, 21st Session (9-20 Nov. 1998), 22nd Session (26 Apr-14 May 1999), U.N. GAOR, 54th Sess., Supp. No. 44, ¶ 126, U.N. Doc. A/54/44 (1999).
157. Report of the Committee Against Torture, supra note 136, 64.
158. Report of the Committee Against Torture, U.N. GAOR, 52nd Sess., Supp. No. 44, ¶ 182, U.N. Doc. A/52/44 (1997).
159. Report of the Committee Against Torture, supra note 136, ¶ 90.
160. Report of the Committee Against Torture, 21st Session (9-20 Nov. 1998), 22nd Session (26 Apr.-14 May 1999), supra note 137, ¶ 76(g).
161. Report of the Committee Against Torture, 25th Session (13-24 November 2000), 26th Session (30 April-18 May 2001), supra note 104, ¶ 58 (a).
162. Id. ¶ 95(I).
163. Id. ¶ 113(C).
164. Hajrizi Dzemajl et al. v. Yugoslavia, supra note 77, ¶ 3.6.
165. Id. ¶ 3.3.
166. Summary Record of the 1st Part (Public) of the 287th Meeting, Held at the Palais Des Nations, Geneva, on Thursday, 1 May 1997, U.N. Comm. Against Torture, 18th Sess., 11, U.N. Doc. CAT/C/SR.287 (1997).
167. Summary Record of the 1st Part (Public) of the 412th Meeting, Held at the Palais Des Nations, Geneva, on Tuesday, 2 May 2000, U.N. Comm. Against Torture, 24th Sess., 14, U.N. Doc. CAT/C/SR.412 (2000).
168. See also Nowak, Challenges to the Absolute Nature of the Prohibition of Torture and III-Treatment, supra note 4, at 676.
169. See CAT, supra note 1, at Reservations and Understandings Upon Ratification, available at http://www.hri.ca/fortherecord1998/ documentation/reservations/cat.htm.
170. See, e.g., Report of the Committee Against Torture, 23rd Session (8-19 November 1999), 24th Session (1-19 May 2000), U.N. GAOR, 55th Sess., 179(b), U.N. Doc. A/55/44 (2000).
171. Mora Memorandum, supra note 21, at 12.
172. Selmouni v. France, Appl. No. 25803/94, 1999-V Eur. Ct. H.R. 155, at 182 et seq.;
173. Rouillard, supra note 10, at 36, comments this judgment as follows: This judgment of the European Court of Human Rights certainly flies in the face of the argument presented by the Office of Legal Counsel, which relies solely on a quarter-century-old opinion favorably to its argument, but fails to mention the evolution of the law in the last decade.
174. See The Guantánamo Report, supra note 4, ¶ 50.
175. Mora Memorandum, supra note 21, at 7.
176. See Guantánamo Report, supra note 4, ¶ 87.