Even if torture was efficient, it would be prohibited

With the releasing of CIA torture report the UN Special Rapporteur on Human Rights and Counter-Terrorism  says that the US attorney general is under a legal duty to bring criminal charges against those responsible. How do you perceive this report in the framework of international law, what kind of consequences it might, should have? Read few comments.

Marco SassòliProfessor of International Law, Director of the Department of International Law and International Organization, University of Geneva

Indeed, under the UN Convention against torture, the US is under an obligation to prosecute those suspected of torture. The report shows that there was torture under the Bush administration. President Obama has stopped this, but the current discussion in the US about the report shows that large parts of public opinion still believe that the fight against terrorism may justify torture, or to claim such acts as waterboarding is not torture. However, Art. 2(2) of the UN Convention against Torture stipulates: “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.” A positive aspect of the Report is that it finds that torture did not allow to obtain evidence which permitted to avoid terrorist attacks and that several people were tortured “by mistake”. Anyway, even if torture was efficient, it would be prohibited. It dehumanizes not only the victims but also those who use it. It certainly also provoked more resentments against the US and strengthened the enemies of the US instead of weakening them.

Paul Arnell, Reader in Law, Aberdeen Business School, Robert Gordon University Aberdeen

As a party to the 1984 UN Torture Convention the United States to is obliged in international law to investigate, prosecute, punish acts of torture of committed by persons within its territory. This is a clear and established binding obligation upon it. The US Senate Intelligence Committee appears to be very strong evidence indeed that there are individuals within the US who have been involved in torture. Therefore the US is bound in international law to act. An international legal obligation, however, is not something that can be immediately and forcibly applied. Indeed, a criminal investigation and prosecution may well not materialise. If this is the case then the result may only be a further deterioration of the reputation of the US as a law abiding member of the international legal community.

Daragh Murray, Lecturer, Human Rights Centre and the Director of the Human Rights Centre Clinic, University of Essex

In terms of the implications if the acts described in the report did amount to torture, then the following is relevant.

The United States is a state party to the UN Convention against Torture and is subject to a number of international legal obligations on this basis. In particular, Article 4 of the convention requires that states parties must criminalise torture and must make sure that such offences receive punishment appropriate to their gravity. Article 5 of the convention requires that the State should establish its jurisdiction (i.e. Investigate and/or prosecute) when suspected acts of torture are committed on its territory or by its state agents.

As you can see there is a clear obligation under international law to investigate suspected instances of torture. If these investigations indicate criminal liability then there is an obligation to prosecute.

It is worth noting that article 2 of the convention against torture provides that exceptional circumstances cannot justify torture.

I would assume that the United States’ obligations under The Convention against torture is what the statement you read referred to.

Winston NaganResearch Scholar Professor of Law, Director, Institute for Human Rights, Peace and Development, University of Florida

There is an international law obligation to prosecute. Torture is also criminalized under US domestic law. There is clearly a prima facie case for an indictment  under US law. The report presents evidence of torture as a practice. A case would still have to prove individual responsibility for specific criminal conduct, beyond a reasonable doubt. I believe the report provides a prosecutor, probable cause to go forward with a selected number of cases.  .

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