The prohibition of torture: absolute means absolute.

• Author: Rodley, Nigel S.

1. 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 (6) It is not clear how valid the DoD Working Group Report remains now that its chief legal inspiration has been withdrawn.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. (9) But a number of hitherto unauthorized techniques approved by the Secretary of Defense for possible use by interrogators would be capable of constituting torture and/or cruel or inhuman treatment, namely:

   * Hooding

   * Sleep adjustment (e.g., reversing sleep cycles from day to night. We are told 'this technique is not sleep deprivation)

   * False flag (convincing the detainee that individuals from a country other than the United States are interrogating him)

   * Threat of transfer (threatening to transfer the subject to a third country that subject is likely to fear would subject him to torture or death. The threat would not be acted upon, nor would the threat include any information beyond the naming of the receiving country)

   * Isolation for up to 30 days

   * Forced grooming (consider the effect of forced shaving on a devout Muslim)

   * Use of stress positions such as prolonged standing (up to 4/24 hours)

   * Sleep deprivation

   * Removal of clothing

   * Increasing anxiety by the use of aversions e.g. presence of dogs

   * Deprivation of light/auditory stimuli (i.e., sensory deprivation techniques) (10)

   I refer to these as they must be presumed to be illustrative of the kinds of interrogation techniques that the authors of the legal memoranda were concerned should pass legal muster. Any combination of them, especially over a protracted period of time would certainly 'amount to' torture. Many of these techniques have been used at Guantanamo. The sin apparently committed at Abu Ghraib is that they were used without the appropriate safeguards (and on camera?). It was not done by the book, even if it was contemplated by the book. And it is a book approved by people with legal credentials. I am not aware of the case for the following not to constitute torture or cruel or inhuman treatment: Seizing and transferring people to the other side of the world for months or years without end; (11) holding them isolated from the outside world, sometimes hidden from the ICRC ("ghost detainees"); "extraordinary renditions" to countries where the rendered person faces torture. That case would make for interesting reading.

2. INTERNATIONAL HUMANITARIAN LAW

   To start with international humanitarian law, since that is where the Presidential Directive starts, it always seemed reasonably straightforward. As far as international armed conflict is concerned, several provisions of each of the Geneva Conventions demand humane treatment. For example, the Third Geneva Convention on the Protection of Prisoners of War provides in article 17:

   No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind. (12) Similarly, the Fourth Geneva Convention on the Protection of Civilian Persons stipulates in article 32:

   The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents. (13) Indeed, all the Geneva Conventions consider as grave breaches "torture or inhuman treatment" and "willfully causing great suffering or serious injury to body or health." (14) Grave breaches are a species of war crime. They are subject to jurisdiction by any state party "regardless of their nationality." (15)

   Meanwhile, Article 3 common to all the Geneva Conventions, which applies in non-international armed conflict, requires that "[p]ersons taking no active part in hostilities, including ... those placed hors de combat by ... detention ... shall in all circumstances be treated humanely" (16) Among certain acts "prohibited at any time and in any place whatsoever" are "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" as well as "outrages on personal dignity, in particular humiliating and degrading treatment." (17) Violations of these provisions have been considered war crimes by the International Criminal Tribunal for the Former Yugoslavia. (18) They are so considered by article 8 of the Statute of the International Criminal Court (ICC). (19) It is worth noting that the only legislative definition in international humanitarian law of terms such as "torture" and "cruel or inhuman treatment" are to be found in the Elements of Crime agreed by signatories to the ICC, including the United States. (20) Thus both "inhuman" (international armed conflict) and "cruel" (non-international conflict) are defined as the infliction of "severe physical or mental pain or suffering." (21) There is no distinction between them. The only element that distinguishes each of these from torture is that torture has the additional element of purpose: the pain or suffering must be inflicted "for a purpose such as obtaining information or a confession, punishment, intimidation or coercion, or for any reason based on discrimination of any kind." (22)

   What then could possibly be the basis for denying the legal obligation of humane treatment? The strategy is to argue that the treaties do not apply. The OLC has asserted that the war in Afghanistan (and presumably by extension the war against Al-Qaeda) was an international armed conflict. (23) So, according to the argument, first, the benefits of the guarantees were vouchsafed only to "protected persons." (24) The Taliban are not covered as protected persons because they are apparently "unlawful combatants" (a category unknown to the Conventions) and Al-Qaeda are not covered because they were unlawful combatants and they do not belong to a...