Before and after the Senate Select Committee on Intelligence released its Report on Torture under the Bush administration, on December 9, 2014, a well-orchestrated publicity campaign was carried out by U.S. “apologists of torture” or “friends of torture”.
To understand their arguments, and those contained in the Senate Torture Report, it is essential to understand the precise legal meaning of the term “torture” as it is defined in the U.N. Convention Against Torture.
The first two articles of the Convention define in unequivocal terms what is meant by torture, and Article 16 describes the prohibition of other acts of cruel, inhuman or degrading treatment which do not rise to the level of “torture” as defined in Article 1.
These provisions establish the following:
1. For the purposes of this Convention, torture means 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 or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.
For the text of Article 3-7 of the Convention, and an analysis of the obligation to prosecute those likely to have participated in planning or carrying out acts of torture, see
“Background Reading for the Nobel Acceptance Speech in Oslo: The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” The Trenchant Observer, December 4, 2009.
The United States was a party to the Convention on Torture during the Bush administration, and remains a party bound by the Convention’s provisions today.
The Trenchant Observer