What is Obama up to…

Torture and the Law

Compiled by Vienna Colucci, November 2001

What is torture?

Torture cannot be defined by a list of prohibited practices. Human rights treaties define it in a number of different ways, reflecting the different contexts in which they were drafted and the purposes of each particular treaty.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly in 1984 and entered into force on June 26, 1987.

It defines torture as any act by which:

severe pain or suffering, whether physical or mental; is intentionally inflicted on a person; for such purposes as:

  • obtaining from him/her or a third person information or a confession
  • punishing him/her for an act she/he or a third person has committed or is suspected of having committed
  • intimidating or coercing him/her or a third person
  • or for any reason based on discrimination of any kind;

when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

What is ill treatment?

It is impossible to draw a clear dividing line between ''torture'' and other ''cruel, inhuman or degrading treatment or punishment.? Whether an act of ill treatment constitutes torture depends on a number of factors, including the nature and severity of the abuse. Both torture and ill treatment are prohibited in all circumstances by international law.

In times of international armed conflict, ill treatment (described as "inhuman treatment'' and ''willfully causing great suffering, or serious injury to body or health' in the Geneva Conventions) are prohibited and criminalized as grave breaches of the Geneva Conventions. These grave breaches are also incorporated in the jurisdiction of the Yugoslavia Tribunal and of the International Criminal Court.

Common Article 3 of the Geneva Conventions prohibits ''violence to life and person,'' in particular ''mutilation, cruel treatment and torture'' and also prohibits ''outrages upon personal dignity, in particular humiliating and degrading treatment''. These terms include ''other forms of cruel, inhuman and degrading treatment or punishment." The drafters of common Article 3 avoided a detailed list of prohibited acts in order to ensure that it had the broadest possible reach, leaving no loophole. As the official commentary by the International Committee of the Red Cross explained:

''It is always dangerous to go into too much detail -- especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and, at the same time, precise.''

Every act of torture is a crime under international law.

  • If torture is committed in an armed conflict, it constitutes the war crime of torture.
  • If torture is committed as part of a systematic or a widespread pattern of similar acts, it constitutes the crime against humanity of torture.
  • The Convention against Torture prohibits torture as an independent crime, as a war crime, and as a crime against humanity, absolutely and in all circumstances.
  • The Geneva Conventions prohibit the war crime of torture in both international wars and internal conflicts such as civil wars or rebellions.
  • The Rome Statute of the International Criminal Court prohibits torture when it constitutes genocide, a crime against humanity or a war crime.

Are there exceptions to the prohibition against torture?

No. Article 2(2) of the Convention states that: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

The prohibition of torture has a special status in international law. It is part of customary international law, which means it is binding on all states, whether or not they have ratified any of the international human rights treaties.

The prohibition on torture is also a ''peremptory norm,'' which means that it cannot be overruled by any other law or by local custom.

May the United States extradite a person to a country where she/he might face torture?

No. Article 3.1 of the Convention against Torture states that: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

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People complain because of Obama’s decision to close the Guantanamo Bay facility. Why would he do such a thing?

People complain because Obama is having Umar Farouk Abdulmutallab tried in conventional court instead of a military tribunal. Why would he do such a thing?

Could it be because it’s so easy to cross the line when no one is watching, when there are no real witnesses? Is Obama trying to hold us to a higher standard? Is that bad?

I wonder if Jesus would be for or against these changes?

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Was Jesus GOD?

  Here is what scripture says:   1Co 8:6 But to us there is but one God, the Father, of whom are all things, and we in him; and one Lord...