for Constitutional Democracy
Floersheimer Center
Defining Torture
B Y G A I L H . M I L L E R
BENJAMIN N. CARDOZO SCHOOL OF LAW
The Cardozo Law School’s Floersheimer Center for Constitutional Democracy
was established in 2000 through a generous gift from Dr. Stephen
Floersheimer. Its goal is to better understand, and to assist in improving,
the functioning of constitutional democracies, both in the United States
and abroad. The Center supports research by scholars and policymakers,
hosts speakers and conferences, issues publications, and provides
financial support for visiting scholars as well as student projects. Topics
of particular concern include civil liberties in an age of terrorism, the
democratic impacts and functions of new technologies, the structures of
democratic government, and the relationship between church and state.
The Center’s publications include Occasional Papers on current
topics by members of the Cardozo faculty and friends of the Law
School. This is Occasional Paper # 3, published in December 2005.
For more information on the Floersheimer Center’s activities,
please visit our Web site:
www. cardozo. yu. edu/ floersh/ index. asp
Cover photograph by Alexis Robie
Defining Torture
B Y G A I L H . M I L L E R
BENJAMIN N. CARDOZO SCHOOL OF LAW
YESHIVA UNIVERSITY
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for Constitutional Democracy
Floersheimer Center
Contents
DEFINING TORTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. WHY DEFINE TORTURE?. . . . . . . . . . . . . . . . . . . . . . . . . 2
II. THE CONVENTION AGAINST TORTURE . . . . . . . . . . 5
A. An Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Severe Pain or Suffering . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Physical or Mental . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. Intentionally Inflicted . . . . . . . . . . . . . . . . . . . . . . . . . . 13
E. For Such Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
F. Public Official . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
G. Does Not Include Pain or Suffering . . . . . . . . . . . . . . . 20
from Lawful Sanctions
III. U. S. LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. U. S. Ratification of the CAT . . . . . . . . . . . . . . . . . . . . 23
B. Torture as Federal Crime . . . . . . . . . . . . . . . . . . . . . . . 25
C. Federal Civil Liability for Torture . . . . . . . . . . . . . . . . . 29
D. Torture and Deportation . . . . . . . . . . . . . . . . . . . . . . . . 32
E. Torture Victim Relief Act of 1998 . . . . . . . . . . . . . . . . 33
F. Torture and Military Policy . . . . . . . . . . . . . . . . . . . . . . 34
G. Overview of U. S. Torture Definition . . . . . . . . . . . . . . 35
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX: UN STATE REPORTS . . . . . . . . . . . . . . . . . . . . A1
ii FLOERSHEIMER CENTER OCCASIONAL PAPERS
Defining Torture
B Y G A I L H . M I L L E R *
D efining the boundaries of what constitutes torture has
unfortunately emerged as a pressing legal issue. While
most nations declare that torture must be prevented,
prohibited, and condemned, the war on terror has
highlighted just how narrowly and inconsistently
nations define the torture they so condemn. Today, there are multiple
legal definitions and interpretations of the term “ torture.” Yet, agree-ing
upon a universal definition is critical if torture is to be eradicated.
While a difficult task, defining torture is vitally important for the
following reasons. First, governments must be bound by a clear and
constant standard that cannot be manipulated in times of crisis. Second,
public officials need guidance as to the lawfulness of their tactics.
Lastly, the international community must be able to hold governments
accountable for torturous acts. Without a definition that is both clear
and generally agreed upon, all three tasks are hampered.
DEFINING TORTURE 1
This paper begins by discussing the reasons why defining torture
is imperative. It continues by explaining that the absence of a unitary
definition for torture does not result from a lack of imagination; to the
contrary, research reveals a staggering number of legal definitions.
Torture is defined internationally, nationally and locally through conven-tions,
constitutions, statutes, regulations, and judicial interpretation.
The most widely accepted definition of torture is found in the United
Nations Convention Against Torture (“ CAT”). 1 Utilizing this definition
as a foundation for analysis, this paper will dissect each element of the
CAT definition and identify ways in which jurisdictions differ with
regard to particular elements. Information on various jurisdictions’ inter-pretations
and definitions of torture has been gathered from the U. N.
Committee on Torture State Reports submitted from 2000 to 2005 as
well as cases from various international courts. 2 Lastly, this paper will
review U. S. law defining torture. This paper analyzes the various legal
definitions of torture found in international law and the laws of individ-ual
nations; it does not address the implementation and enforcement of
the laws nor their success at preventing, prohibiting, and punishing acts
of torture. 3
I. WHY DEFINE TORTURE?
Torture is a universally condemned practice. 4 Surprisingly, for an act
that is so commonly condemned, there remains no clear understanding
of what it actually is. When the abuse of detainees at Abu Ghraib was
revealed, there was little doubt that the events amounted to torture.
Most who saw the photographs of naked detainees, hooded, covered in
feces, handcuffed to polls, crouching on boxes, forced to form human
pyramids, threatened by dogs, and made to simulate oral sex, immedi-ately
labeled the actions as torture. 5 Yet, the meaning of the term tor-ture
may not be as clear in the legal context as it is when used to indi-cate
moral outrage.
The term torture is widely used in international conventions and
treaties, as well as laws at the national and local levels. However, there
persist many varied meanings and interpretations of the term. 6 Dis-agreement
among nations as to what constitutes torture may create
obstacles to preventing and punishing torture, which may explain, in
2 FLOERSHEIMER CENTER OCCASIONAL PAPERS
part, why acts that many agree are torture continue to recur. 7
Under customary international law, the prohibition of torture is
jus cogens— a peremptory norm8 that is non- derogable under any cir-cumstances.
9 It is binding on all nations. 10 This elevated status within
international law places torture on par with slavery and genocide. 11
Nevertheless, without agreement as to how torture can be distinguished
from other, permissible acts, the import of this special status is severely
diminished.
For example, in 1999, the Israeli Supreme Court issued a pivotal
decision, Public Committee Against Torture in Israel v. Israel, declaring
a number of interrogation techniques to be illegal. 12 The Court stu-diously
avoided calling these techniques torture. In fact, the word tor-ture
does not appear anywhere in the opinion. Rather, when evaluating
the different interrogation methods, the Court described them in detail
and then summarily proclaimed each to be unlawful. In its legal analy-sis,
the Court simply provided conclusory statements in analyzing the
methods, such as:
It harms the suspect’s body. . . . [ I] t surpasses that which is
necessary . . . [ and] does not serve any purpose inherent to
interrogation. . . . [ I] t is degrading and infringes upon an individ-ual’s
human dignity. . . . [ I] t degrades him. . . . [ It] causes the
suspect suffering. . . . [ T] hey impinge upon the suspect’s dignity,
his bodily integrity and his basic rights in an excessive manner
( or beyond what is necessary). 13
The Court also explained that the necessity defense would be available
to an investigator applying physical interrogation methods. 14 If the
Court had deemed these acts torture, under the principle of jus
cogens, such a defense would have been unavailable. The avoidance of
labeling the illegal acts “ torture” in this case illustrates the power of
the term— reviled such that courts avoid using it and governments do
not want to be guilty of torture even if it means evading a finding of
torture without necessarily changing practices. 15
Furthermore, pursuant to the jus cogens nature of the prohibition
of torture, states have universal jurisdiction, and thus, are “ entitled to
investigate, prosecute and punish or extradite individuals accused of
DEFINING TORTURE 3
torture, who are present in a territory under its jurisdiction.” 16 In light
of the universal criminality of torture, if a court reaches beyond its
usual jurisdiction to hold a public official from another country
accountable for acts of torture, the lack of a single definition of torture
could cause confusion and disagreement.
The absence of a single, precise definition not only affects torture
prevention, but bolsters the ability of nations to avoid consequences
through dishonesty and hypocrisy. As the 1973 Amnesty International
Report on Torture points out, “[ g] iven that the word ‘ torture’ conveys an
idea repugnant to humanity, there is a strong tendency by torturers to
call it by another name, such as ‘ interrogation in depth’ or ‘ civic therapy,’
and a tendency of victims to use the word too broadly.” 17 As the term
torture is infused with a sense of moral reprobation, countries are very
reluctant to condone torture publicly. However, governments often
push the limits of their authority as far as the law and international
community will permit. In the absence of a universal definition, many
governments narrowly define torture, enabling their agents to act how-ever
they see fit without crossing the definitional line. 18 Governments
are able to continue to condemn torture publicly while employing hor-rific
methods of interrogation and punishment. For example, in 2002,
the U. S. Department of Justice defined torture to exclude even extreme
methods of interrogation so long as they did not result in impairment of
bodily function or pain similar in intensity to organ failure. 19 A single,
clear definition of torture limited to the most severe acts, yet not diluted
in force, would rein in the manipulation on each side of the spectrum—
both the advocates who overuse the term and the governments who
define it too narrowly— creating a space in which claims of torture are
taken seriously.
Public officials must fully understand the lawful limits of their
actions. Without a clear definition of torture, how can the public expect
its public officials to stay within the lawful bounds of interrogation? In
testimony before the Senate Armed Services Committee, Porter J. Goss,
the Director of Central Intelligence, admitted that “ there had been
‘ some uncertainty’ in the past among C. I. A. officers about what interro-gation
techniques were specifically permitted and prohibited.” 20 Con-sidering
the grave nature of torture, such uncertainty is unacceptable. A
well- understood definition of torture would assist both public officials
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to carry out their duties, and the public to gain confidence that the gov-ernment
is acting properly.
Finally, a single definition would assist the international commu-nity
in placing pressure on offending governments. U. N. Secretary-
General Kofi Annan has explained that
[ t] orture is an atrocious violation of human dignity. It dehuman-izes
both the victim and the perpetrator. The pain and terror
deliberately inflicted by one human being upon another leave
permanent scars. . . . Freedom from torture is a fundamental
human right that must be protected under all circumstances.
Growing awareness of international legal instruments and pro-tection
mechanisms gives hope that the wall of silence around
this terrible practice is gradually being eroded. 21
A uniform definition would infuse the international community’s
rhetoric condemning torture with meaning, holding countries to the
standards claimed in their anti- torture pronouncements. International
law, through customary norms but more importantly through the CAT,
provides a definition. This definition, while useful, nevertheless includes
ambiguous terms that must be clarified. Unfortunately, many individual
nations ignore or misinterpret the CAT, employing individual definitions
that are often too lax and allow too many horrific acts to escape the def-inition
of torture. In the end, a definition of torture must be clear, uni-form,
adequately strict, and universally accepted.
II. THE CONVENTION AGAINST TORTURE
Myriad international declarations, agreements, and conventions, in-cluding
Article 5 of the Universal Declaration on Human Rights, Article
7 of the International Covenant on Civil and Political Rights, the Con-vention
on the Prevention and Punishment of Genocide, the European
Convention on Human Rights, the American Convention on Human
Rights, and the Vienna Declaration and Programme of Action, prohibit
torture but fail to define it. On December 10, 1984, the U. N. General
Assembly gave meaning to the term by adopting the CAT, which entered
into force on June 26, 1987.22 With over 135 signatories, 23 the CAT
contains the most commonly used and widely endorsed definition of
DEFINING TORTURE 5
torture. 24 Explaining the international acceptance of the CAT, the
International Criminal Tribunal for the Former Yugoslavia has stated that
the CAT torture definition reflects “ a consensus . . . representative of
customary international law.” 25 The CAT 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 or a third person information or a confes-sion,
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 inci-dental
to lawful sanctions. 26
The CAT’s definition thus comprises the following elements: ( 1) an
act; ( 2) severe pain or suffering; ( 3) physical or mental pain; ( 4) intent;
( 5) particular purposes; ( 6) involvement of a public official; and ( 7) the
absence of pain or suffering from lawful sanctions.
Article 2 of the CAT requires each country to establish its own
internal legislation to prevent torture. 27 Signatories have complied with
Article 2 by prohibiting torture through constitutional amendment or
legislation. 28 In translating the CAT’s principles into national or local
laws, many signatories have tinkered with the CAT’s definition of tor-ture,
redefining the term through slight alteration. Consequently, imple-mentation
of the CAT has resulted in the emergence of numerous defini-tions
of torture, rather than a unitary, uniform definition.
This paper will consider each element of the CAT definition in
turn, and examine how signatories have adopted or amended each ele-ment.
29
A. An Act
The CAT definition of torture requires an “ act” that causes severe pain
or suffering, whether physical or mental. 30 It is important to deter-
6 FLOERSHEIMER CENTER OCCASIONAL PAPERS
mine, then, what constitutes an act. If an act is limited to pro- active
behavior, thereby excluding omissions that cause severe pain or suffer-ing,
the definition of torture would be substantially narrowed. For
example, leaving a prisoner in a room for several days and neglecting to
provide him with food or water would certainly cause severe pain or
suffering, but may be considered an omission rather than an act. How-ever,
this restrictive interpretation runs contrary to the purpose of the
CAT. 31 Affording due weight to the CAT’s objective of prohibiting con-duct
that inflicts severe pain and suffering, scholars have appropriately
concluded that an act includes omissions. 32
In its definition of torture, the United Kingdom avoids any confu-sion
on the issue by explicitly including both acts and omissions, stating
that “ it is immaterial whether the pain or suffering . . . is caused by an
act or an omission.” 33 Likewise, Canada defines torture as “ any act or
omission by which severe pain or suffering” occur, leaving no room for
uncertainty with regards to the act requirement. 34
Some CAT signatories have enacted laws that do not require an
“ act” per se as a necessary element of torture. For instance, Colombia’s
law against torture requires no act, but rather stipulates that liability
shall attach to “ anyone who subjects another person to severe physical or
mental pain or suffering.” 35 Similarly, the Czech Republic avoids the
term “ act” in its torture definition: “ He who shall cause to another per-son
physical or mental suffering through torture . . . shall be impris-oned.”
36 The use of a verb like “ subject” or “ cause,” instead of the noun
“ act,” may broaden the scope of behaviors that constitute torture, cap-turing
intentional omissions, such as the failure to provide nutrients.
Greece uses the term “ infliction” instead of “ act.” In addition, the
Greek Penal Code states that in order to constitute torture, the inflic-tion
must be “ systematic,” a requirement unique to Greece. 37 Latvia’s
definition of torture based on the CAT definition, requires that the tor-turer
inflict “ multiple or prolonged acts” upon the victim. 38 The Latvian
and Greek conceptions of torture provide an additional hurdle, since a
single act may not be sufficient, regardless of severity. They also open
the door for debate regarding what constitutes “ systematic infliction” or
a “ prolonged act.” For example, abuse lasting a few hours, or even inter-mittent
abuse over a period of days, might arguably not be “ prolonged”
DEFINING TORTURE 7
enough to amount to torture. In the opinion On Application of
Criminal Laws in Cases of Infliction of Intentional Bodily Injuries, the
Latvian Supreme Court hypothesizes several acts that would certainly be
considered torturous: “ whipping with rods, pinching, influence by ther-mal
factors, pricking with sharp objects, etc.” 39 This list begs the ques-tion
whether whipping once with a rod, or whether one pinch ( or two,
or three), would constitute torture. Requiring more than an act, these
definitions are fundamentally more complex than the CAT definition,
which provides a very basic primary element, an act.
B. Severe Pain or Suffering
Under the CAT definition, the harm caused to the victim must be
“ severe pain or suffering” in order to amount to torture. 40 It is, of
course, virtually impossible to quantify “ severe pain and suffering” or
to define it in absolute terms. The CAT itself does not elaborate or
provide guidance on the key adjective, “ severe.”
1. Torture as an egregious type of cruel, inhuman
or degrading treatment
The CAT contemplates torture as falling at the extreme end of a
spectrum of pain- inducing acts. This hierarchy of ill treatment originat-ed
in the Greek Case, a 1969 decision of the European Commission on
Human Rights (“ ECHR”). 41 Fifty- three individuals, along with three
governments on behalf of their citizens, alleged torture and ill- treatment
during detention by the Greek government in Athens, Piraeus, Salonica
and Crete. 42 The complainants relied on the European Convention on
Human Rights, which prohibits both torture and “ inhuman or degrading
treatment or punishment,” though without defining those terms. 43 In
its decision in the case, the Commission elaborated on what distin-guished
“ torture” from “ inhuman or degrading treatment”:
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 partic-
8 FLOERSHEIMER CENTER OCCASIONAL PAPERS
ular situation, is unjustifiable. . . . The word “ torture” is often used
to describe inhuman treatment, which has a purpose, such as
obtaining information or confessions, or the infliction of punish-ment,
and it is generally an aggravated form of inhuman
treatment. 44
This progression of severity – from degrading treatment, through inhu-man
treatment, to torture – creates a hierarchy of harms with torture
as the most egregious.
Since the Greek Case, the ECHR has utilized this hierarchy con-cept
in a number of decisions. 45 For example, in The Republic of
Ireland v. The United Kingdom, the ECHR gave concrete meaning to
the hierarchy, ruling that five interrogation techniques constituted inhu-mane
and degrading treatment but did not rise to the level of torture. 46
The ECHR reasoned that “[ t] he distinction between torture and inhu-man
or degrading treatment derived principally from a difference in the
intensity of the suffering inflicted. . . . The term ‘ torture’ attached a spe-cial
stigma to deliberate inhuman treatment causing very serious and
cruel suffering.” 47 The ECHR held that the five techniques “ did not
occasion suffering of the particular intensity and cruelty implied by the
word torture.” 48
Unlike the European Convention, the CAT does define torture,
but it too treats it as a particularly egregious subcategory of cruel, inhu-man
or degrading treatment. 49 The first draft of the CAT defined tor-ture
as an “ aggravated and deliberate form of cruel, inhuman or degrad-ing
treatment or punishment.” 50 While this explicit statement of the
hierarchical relationship between torture and other cruel, inhuman or
degrading treatment was removed from the later versions, the concept
remains. Article 16 of the CAT states:
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 I, 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. 51
DEFINING TORTURE 9
Differentiating torture from other cruel, inhuman or degrading
treatment carries legal repercussions as well as rhetorical ones. 52 Under
customary international law, torture is jus cogens— never permissible or
justifiable under any circumstances. The CAT reaffirms this principle,
providing that “ no exceptional circumstances whatsoever . . . may be
invoked as a justification of torture.” 53 Other ill- treatment does not
hold this special legal status. 54
2. A subjective standard
The element of infliction of severe pain or suffering considers the
impact of the act on the particular victim. Presumably, the same act
could have different effects on different people depending on their nat-ural
susceptibility and threshold for pain. Thus, the victim’s physical or
mental constitution will become relevant in cases where severity of the
ultimate pain is at issue. The U. N. Special Rapporteur on Torture has
pointed out that children and pregnant women are particularly vulnera-ble
to torture. For example, children “ may suffer graver consequences
than similarly ill- treated adults.” 55 Going further towards subjectivity
than the CAT definition, the ECHR has adopted an expressly subjective
standard. The ECHR approaches the severity of the act within the con-text
of the particular case, considering factors such as the physical and
mental effects on the person experiencing the harm, the duration of the
act, and the age, sex, and culture of the person experiencing the harm. 56
3. Defining “ severe”
States and transnational bodies have differed in their approach to
the severe pain or suffering element by interpreting the term severe in
their own way or by replacing it with other terms. Some have attempted
to limit the reach of the CAT through narrow interpretations of the
“ severe pain” element. For example, a recent U. S. Justice Department
memorandum asserted that the term “ severe pain” requires that “[ t] he
victim must experience intense pain or suffering of the kind that is
equivalent to the pain that would be associated with serious physical
injury so severe that death, organ failure, or permanent damage resulting
in loss of significant body function will likely result.” 57 This analysis is
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inconsistent with the negotiating history of the CAT, in which the U. S.
clarified that “ although conduct resulting in permanent impairment of
physical or mental faculties is indicative of torture, it is not an essential
element of the offense.” 58 After much negative press and harsh criti-cism,
the Bush Administration repudiated this memorandum and with-drew
its restrictive understanding of “ severe pain.” 59 Nevertheless, the
episode demonstrates the ways in which some countries have attempt-ed
to limit the reach of the CAT through narrow interpretation of the
severe pain element.
In The Republic of Ireland v. The United Kingdom, the ECHR
unanimously ruled that a combination of five interrogation techniques
used by the British Security forces in Northern Ireland amounted to
inhuman and degrading treatment but not torture under the European
Convention on Human Rights. 60 The ECHR reasoned that “[ t] he dis-tinction
between torture and inhuman or degrading treatment derived
principally from a difference in the intensity of the suffering inflicted . .
. . The term ‘ torture’ attached a special stigma to deliberate inhuman
treatment causing very serious and cruel suffering.” 61 The ECHR held
that the five techniques “ did not occasion suffering of the particular
intensity and cruelty implied by the word torture.” 62
By sharp contrast, in its State Report, Egypt states that its defini-tion
of torture “ imposes no prerequisites concerning the degree or
extent of pain or suffering.” 63 The absence of a minimum threshold of
pain or suffering substantially broadens the definition of torture. The
government of Latvia has taken yet another approach, requiring that the
acts must “ caus[ e] particular pain or suffering to victims.” 64 Still other
countries, such as Greece and Luxembourg, use the word “ acute”
instead of “ severe.” 65 The exact significance of replacing “ severe” with
“ particular” or “ acute” is unclear, especially since the latter terms are
translations, but all three terms seem roughly synonymous.
C. Physical or Mental
The CAT’s definition of torture extends to pain or suffering that is either
mental or physical. 66 The CAT does not delineate what constitutes
mental or physical pain, nor does it draw a boundary between the two.
DEFINING TORTURE 11
If a torture victim experiences severe physical and mental pain as a result
of a single act, such as rape, there is no need to parse out the particu-lar
types of pain. Yet, in naming both physical and mental, the CAT
acknowledges a difference between the two types of pain or suffering.
The most detailed description of the mental harm element can
be found in the U. S. definition of torture. As a condition for ratifying
the CAT, the United States submitted formal understandings including
a more precise definition of mental torture:
Mental pain or suffering refers to prolonged mental harm caused
by or resulting from ( 1) the intentional infliction or threatened in-fliction
of severe physical pain or suffering; ( 2) the administration
or application, or threatened administration or application, of mind
altering substances or other procedures calculated to disrupt
profoundly the senses or the personality; ( 3) the threat of immi-nent
death; or ( 4) the threat that another person will imminently
be subjected to death, severe physical pain or suffering, or the
administration or application of mind altering substances or
other procedures calculated to disrupt profoundly the senses or
personality. 67
This understanding defines mental pain and suffering by the
source of the pain. Confining mental pain or suffering to a closed set of
enumerated actions thereby narrows the definition. In addition, without
guidance differentiating between transient mental harm and prolonged
mental harm, the understandings’ use of the word “ prolonged” may prove
to further narrow the definition. Must the harm be constant and endur-ing,
or might periodic yet debilitating flashbacks suffice? Just as the
word “ prolonged” creates difficulties in Latvia’s version of the act ele-ment,
so too does it pose new confusions and hurdles here. 68
Croatia simply failed to prohibit mental torture at all, limiting its
definition to physical torture69 and thereby excluding many types of
behavior from being considered torture. For instance, if a state official
were to inform a prisoner that her family will be killed unless she
reveals certain information, that act may qualify as torture under the
CAT, but not in Croatia.
12 FLOERSHEIMER CENTER OCCASIONAL PAPERS
D. Intentionally Inflicted
The CAT definition of torture requires that severe pain and suffering
be “ intentionally inflicted” on a person. 70 In other words, were a victim
to suffer severe pain at the hands of a state official, but the official did
not intend to cause the severe pain, the act would not amount to tor-ture.
This might be the case if, for example, a prisoner experienced
severe pain or suffering as a result of poor prison conditions but the
officials did not intend the conditions to affect the prisoner so severely.
The requisite intent might also be absent in cases where medical
experiments are conducted on prisoners. If experimentation severely
harms a prisoner, but the doctors had no intention to harm the prison-er,
the state could argue that its behavior, while potentially criminal
under other laws, does not amount to torture.
The ECHR has made the intent requirement easier to satisfy by
shifting the burden of proof from the victim to the government. For
example, in Selmouni v. France, the ECHR noted that “ where an indi-vidual
is taken into police custody in good health but is found to be
injured at the time of release, it is incumbent on the State to provide a
plausible explanation of how those injuries were caused.” 71 Because no
such explanation was offered, the ECHR found that the state tortured
an individual even absent any evidence of intent or the identity of the
perpetrator. 72 The physical evidence of harm while in state custody and
the testimony of the victim were sufficient to trigger a presumption of
intent.
Under the American Convention on Human Rights, the perpetra-tors’
intent need not be established. 73 Thus, in Paniagua Morales v.
Guatemala, the Inter- American Court of Human Rights found that the
Guatemalan government tortured individuals in violation of Article 5 of
the American Convention on Human Rights on the basis of autopsies
which “ reliably revealed signs of torture ( tying, beating etc.)” that were
proven to be imputable to the state. 74
Latvia substitutes awareness for intention in its definition of tor-ture,
defining torture as “ actions that, committed by the guilty person,
being fully aware of it, are characterized by multiple or prolonged acts,
causing particular pain or suffering.” 75 This definition does not indicate
– at least as translated – what awareness is necessary to constitute tor-
DEFINING TORTURE 13
ture. Generally, awareness or knowledge may be evidence of intent but
is the same as intention. Thus, this alternate phrasing may significantly
change the definition.
Moreover, the intent element raises the general question: what
must a torturer have had the intent to do? The CAT requires that the
actor intend to inflict severe pain or suffering, not simply to intend to
do an act that in turn cause such harm. The use of the phrase “ intent
to inflict” implies that the torturer must have intended both to act and
to cause a particular harm.
Often, when analyzing the kind of intent required, lawyers turn
to the terms “ general intent” and “ specific intent.” General intent is a
less demanding standard, requiring merely that the actor intended to
perform the conduct as opposed to intending to create a particular
result in violation of the law. Specific intent requires acting with the
intent to achieve a result or intending to commit a particular crime. 76
The text of the CAT itself does not expressly require either specific
intent or general intent. 77 Regardless of whether the intent is character-ized
as specific or general, it is important to clarify what satisfies intent
in this context.
The United States’ formal understandings at the time of ratifica-tion
included adding the word “ specifically” to the intent element. 78
Evidently the drafters of the U. S. understandings to the CAT, at least,
were concerned that the CAT definition requires only general intent, as
opposed to specific intent.
In memos on the definition of torture, the U. S. Department of
Justice (“ DOJ”) maintains that specific intent is required, 79 yet fails to
define specific intent in this context. Rather, it merely describes the
extreme scenarios of intent. 80 For instance, the DOJ says that the spe-cific
intent standard would be met if an act was performed with the
conscious desire to inflict severe physical or mental pain or suffering.
On the other hand, the standard would likely not be met if an individ-ual
acted in good faith and performed “ reasonable investigation estab-lishing
that his conduct would not inflict severe physical or mental pain
or suffering.” 81 The DOJ memo thus leaves the middle ground vague
and undefined.
14 FLOERSHEIMER CENTER OCCASIONAL PAPERS
The Third Circuit Court of Appeals has interpreted the CAT’s
intent element as not requiring specific intent ( at least as generally
understood in U. S. criminal law). In Zubeda v. Ashcroft, the court held
that the intent requirement merely excludes accidental harm: the CAT
“ distinguishes between suffering that is the accidental result of an
intended act, and suffering that is purposefully inflicted or the foresee-able
consequence of deliberate conduct.” 82 Relying on policy considera-tions,
the court concluded that requiring individuals to establish the
specific intent of their persecutors would impose an insuperable obsta-cle,
rendering the CAT ineffective. 83 Recently, in Auguste v. Ridge, the
Third Circuit found that the specific intent element under the U. S.
understandings to the CAT does not require “ proof of specific intent, as
that term is used in American criminal prosecutions” but rather, “ some-thing
more than an accidental consequence . . . to establish the proba-bility
of torture.” 84 Deeming intentional infliction to include harm that
was the “ foreseeable consequence of deliberate conduct” expands the
potential reach of the term of torture.
Concurring with the Third Circuit’s interpretation, Burgers and
Danelius, the Swedish representatives who presented the first draft of
the CAT to the U. N., explain that “ where pain or suffering is the result
of an accident or mere negligence, the criteria for regarding the act as
torture are not fulfilled.” 85 They leave the necessary intent at that basic
level— not requiring specific intent as commonly understood in U. S.
criminal law.
E. For Such Purposes
The CAT definition includes a purpose limitation; a particular act con-stitutes
torture only if performed for certain purposes. The act must
have been undertaken for
such purposes as obtaining from [ the victim] 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 commit-ted,
or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind. 86
First, it is evident from the text that not just any purpose will do; oth-
DEFINING TORTURE 15
erwise the reference to purpose would be meaningless. Indeed, exami-nation
of U. N. discussions in drafting the precursor to the CAT, the
Declaration Against Torture, confirms that the drafters intended the
list of purposes to be significant. 87 During the formal U. N. Congress
sessions in 1976, a proposal to add the words “ or for any other pur-pose”
to the Declaration failed. 88
Second, the phrase “ such purposes as” indicates that the ensuing
list is illustrative, not comprehensive. Commenting on the first draft of
the CAT, the U. S. explained that the list is “ meant to be indicative
rather than all- inclusive.” 89 By contrast, the International Criminal
Tribunal for the Former Yugoslavia (“ ICTY”) takes the position that for
an act to constitute torture, one of the enumerated purposes must exist.
However, the Tribunal has noted that “ there is no requirement that the
conduct must be solely perpetrated for a prohibited purpose. Thus, in
order for this requirement to be met, the prohibited purpose must sim-ply
be part of the motivation behind the conduct and need not be the
predominating or sole purpose.” 90
Third, phrasing the element to require purposes “ such as” those
listed, rather than “ or for any other purpose,” implies that relevant pur-poses
not listed must have something in common with those specified.
Some conclude that the common element is a relation between the
purpose and state interests or policies. 91 Infusing the common element
of the list of purposes with state interests and policies is supported by
the definition’s a state actor requirement. Under this interpretation, if
an official causes severe pain or suffering for purely sadistic reasons,
that act would not constitute torture under the CAT definition. 92 It is
nearly impossible to imagine individual acts of pure sadism that com-port
with state policies. Regardless of the precise common element
shared by all of the purposes, it is clear that the torturous activity must
be performed for a separate purpose and cannot be an end in itself.
Fourth, the last listed purpose, “ for any reason based on discrimi-nation
of any kind,” is both conceptually and grammatically distinct
from the other purposes. Discrimination is more akin to a reason or
motivation as opposed to a goal such as interrogation or punishment.
Appropriately, this phrase is set apart from the other enumerated pur-poses
by the phrase “ or for.” It is thus not illustrative of the sorts of pur-
16 FLOERSHEIMER CENTER OCCASIONAL PAPERS
poses that bring an act within the CAT definition but rather a separate,
alternative basis on which to ground a finding of torture.
Individual states have varied in implementing the purpose
requirement. Some signatories specify particular purposes in their defi-nitions
of torture. These purposes do not always mirror the list of pur-poses
set out in the CAT. Narrowing the definition by listing a closed
set of purposes creates clear inconsistencies with the CAT. In
Indonesia, for example, a torture case requires proof that the actor
harmed the victim “ in order to obtain a confession or information from
someone or a third person, or in order to threaten or coerce that person
or a third person, or for any discriminatory reason on any grounds.” 93
Abuse for punitive reasons, therefore, would not constitute torture
under Indonesian law, no matter how extreme or disproportionate to
the crime. Spain’s definition states that the pain- inducing act must be
“ for the purpose of obtaining a confession or information from any per-son
or of punishing him for any act he has committed.” 94 Thus, if a
prison guard inflicted severe pain for discriminatory reasons, such as
racial or ethnic hatred, such an act would fall outside Spain’s definition
of torture. In contrast, under the definitions in a handful of countries,
including the U. S., the actor’s purposes are irrelevant or simply not
mentioned. 95 It is unclear why some countries have decided to refer to
specific purposes and others have not. Perhaps the purpose require-ment
is intended to be a means of contextualizing the crime to distin-guish
torture from other forms of abuse. On the other hand, lack of a
purpose requirement may be an attempt to capture all potential forms
of extreme violence by public officials.
F. Public Official
The CAT definition provides that the act must be “ inflicted by or at
the instigation of or with the consent or acquiescence of a public offi-cial
or other person acting in an official capacity.” 96 Even the worst
abuse or most inhuman treatment of a person will not be considered
torture in violation of the CAT unless somehow the state is involved.
Because private “ torture” is generally criminal under national laws
( some utilizing the term torture and some not), the CAT’s drafters con-sidered
an international convention for private torture unnecessary. 97
DEFINING TORTURE 17
When a public official personally inflicts severe pain or suffering,
the state action requirement is met in all but the exceptional circum-stances
when the official is acting for purely private reasons. 98 State
involvement may also be remote and still satisfy the CAT definition,
which reaches private acts consented to, acquiesced in, or instigated by
a public official. Thus, state inaction in the face of private violence can
constitute torture. The U. N. Special Rapporteur on Torture, Nigel S.
Rodley, interprets the state action requirement to be met when public
officials are “ unable or unwilling to provide effective protection from ill-treatment
( i. e. fail to prevent or remedy such acts), including ill- treat-ment
by non- State actors.” 99 Rodley’s position seems the most expan-sive
plausible reading of the public official requirement.
In Z. v. The United Kingdom, the ECHR adopted a similarly
broad understanding of the acquiescence by a public official that would
suffice for a violation of the European Convention on Human
Rights. 100 Holding the government responsible for the inhuman and
degrading treatment inflicted on four children by their parents, the
ECHR found that states must take measures designed to ensure that
individuals within their jurisdiction are not subjected to torture or inhu-man
or degrading treatment, including such ill- treatment administered
by private individuals. Theses measures should provide effective protec-tion,
in particular, of children and other vulnerable persons and include
reasonable steps to prevent ill- treatment of which the authorities had or
ought to have had knowledge. 101
The Court ruled that as the State knew or should have known
that these children were at risk of severe abuse by their parents, the
State had an affirmative obligation to prevent torture or inhuman or
degrading treatment. 102 Thus under the European Convention on
Human Rights, torture may include actions taken by private individuals
if the State has an obligation to protect the victims. Such an obligation
may arise under domestic law, as was the case in Z v. The United
Kingdom. 103 The definition of torture under the CAT has yet to be
stretched to include ( in) action by public officials that violate an obliga-tion
to protect.
A number of countries have adopted definitions of torture that
stray from the CAT language with respect to the public official require-
18 FLOERSHEIMER CENTER OCCASIONAL PAPERS
ment. For an act to constitute torture in Guatemala, it must have been
conducted “ with the authorization, support or acquiescence of the state
authorities” or have been “ committed by the members of groups or
organized gangs having terrorist, insurgent or subversive aims or any
other wrongful purpose.” 104 In Croatia, the connection between the per-son
acting and the government is stated slightly differently. Croatian
torture requires an act by “ an official or any other person who, acting
with the encouragement or the express or tacit approval of an official
person.” 105 In its torture definition, Iceland eliminated the state actor
requirement altogether, simply stating that torture may occur in all situ-ations
regardless of whether the act was performed at the behest of a
public official. 106 Variations on the public official requirement undoubt-edly
affect government accountability with regards to individual acts of
torture, as well as the characterization of acts as torture.
The United States has taken a slightly different approach. In rati-fying
the CAT, the United States presented the following understand-ings
concerning the public official requirement:
The definition of torture in article 1 is intended to apply only to
acts directed against persons in the offender’s custody or physi-cal
control . . .
( d) That with reference to article 1 of the Convention, the
United States understands that the term ‘ acquiescence’ requires
that the public official, prior to the activity constituting torture,
have awareness of such activity and thereafter breach his legal
responsibility to intervene to prevent such activity. 107
While including a concept of custody or physical control, the
U. S. understandings also add the new term “ offender.” However, the
understandings do not define the term offender. Therefore, it is unclear
whether the offender refers to the person accused of torture or the pub-lic
official merely involved in the torture. If the government is defined
as the offender, the additional requirement that the offender must have
custody or physical control of the victim may, in practice, require a
closer nexus between the public official and the victim. 108
In Zheng v. Ashcroft, in which the petitioner sought relief from
deportation on the basis that he was likely to be tortured if returned to
DEFINING TORTURE 19
China, the petitioner claimed that the Chinese government acquiesced
in his torture by third- party smugglers. 109 The Ninth Circuit adopted a
liberal interpretation of the term “ acquiescence,” holding that torture
does not require that the acts be “ willfully accepted” by government
officials. 110 The court found a sufficient nexus between the public offi-cials
and those who inflicted the harm because the officials were
“ aware” of the torturous acts. 111 Citing a report of the U. S. Senate
Foreign Relations Committee, the court reasoned that “ the purpose of
requiring awareness, and not knowledge [ in the understandings], ‘ is to
make it clear that both actual knowledge and ‘ willful blindness’ fall
within the definition of the term acquiescence’.” 112 As phrased by the
Fifth Circuit, the test is whether the government “ would turn a blind
eye to torture.” 113 This case exemplifies how terms used in the CAT
definition, even if adopted in individual country laws, may be contro-versial
upon interpretation.
G. Does Not Include Pain or Suffering from Lawful
Sanctions
Finally, the CAT provides that “ pain or suffering arising only from,
inherent in or incidental to lawful sanctions” does not constitute tor-ture.
114 While the CAT prohibits acts that inflict severe harm, pur-suant
to this provision such acts are allowed and the severe harm
deemed acceptable in the proper context. Interpreted broadly, this pro-vision
could constitute the exception that swallowed the rule— allow-ing
a state to avoid the prohibition on torture simply by sanctioning
methods of punishment that involve extremely harsh treatment. 115
This possibility is currently largely hypothetical, as to date, no country
has defended against charges of torture on the grounds that the
actions were incidental to lawful sanctions. However, the lawful sanc-tions
provision has, for example, precluded arguments that capital
punishment constitutes torture.
The first draft of the CAT did not contain this potential loophole.
The draft stated that torture “ does not include pain or suffering arising
only from, inherent in, or incidental to, lawful sanctions to the extent
consistent with the Standard Minimum Rules for the Treatment of
20 FLOERSHEIMER CENTER OCCASIONAL PAPERS
Prisoners.” 116 A number of countries criticized this draft because the
Standard Minimum Rules for the Treatment of Prisoners are not inter-nationally
legally binding and only concern prison conditions. 117 Some
argued the exception had to be broader than just prison conditions and
should include other punishment practices. After debate within the
Working Group, the provision of consistency with international standards
was deleted rather than corrected. Burgers and Danelius note that dur-ing
the drafting process there was a division between those who thought
the CAT should be limited to acts of torture that were illegal under
national law and those who wanted to criminalize sanctions authorized
by national laws but that should nonetheless constitute torture. 118 The
final lawful sanctions exemption may be the result of political compro-mises
intended to allow particular forms of punishment, such as the
death penalty, without undermining the core principles of the CAT. 119
Many signatories agree that the lawful sanctions language creates
problematic ambiguities. 120 It diminishes the universality of the defini-tion
by infusing exceptions based on national law. As practices that may
be lawful in one state may be unlawful in another, this provision under-mines
the effort to achieve a uniform definition of torture. Some states
have attempted to solve this dilemma by eliminating or clarifying the
exemption in their own torture definitions. For example, Croatia’s defi-nition
of torture has no lawful sanctions exception whatsoever, thereby
providing a stricter framework for defining torture. 121 In its understand-ing,
the United States attempted to clarify and cap the lawful sanctions
exemption:
( c) That with reference to article 1 of the Convention, the United
States understands that ‘ sanctions’ includes judicially- imposed
sanctions and other enforcement actions authorized by United
States law or by judicial interpretation of such law. Nonetheless,
the United States understands that a State Party could not
through its domestic sanctions defeat the object and purpose of
the Convention to prohibit torture. 122
This clarification endeavors to reconcile U. S. domestic laws, which allow
particular practices that may otherwise be prohibited by the CAT, with
the CAT’s ultimate purpose to prohibit torture. However, it is unclear
how in practice this understanding would be applied.
DEFINING TORTURE 21
The U. N. Special Rapporteur on Torture, Nigel S. Rodley, recog-nized
the potential slippery slope of the lawful sanctions exemption and
has interpreted the provision so that differences in national laws would
not effect the strength of the CAT. 123 Rodley concluded that the term
“ lawful sanctions” refers to practices that the international community
widely accepts as permissible sanctions, such as imprisonment. He
cited the Standard Minimum Rules for the Treatment of Prisoners as
an example of international standards that may guide determinations of
acceptable practices. 124 In particular, Rodley concluded that corporal
punishment may amount to torture:
I cannot accept the notion that the administration of such pun-ishments
as stoning to death, flogging and amputation – acts
which would be unquestionably unlawful in, say, the context of
custodial interrogation – can be deemed lawful simply because
the punishment has been authorized in a procedurally legitimate
manner, i. e. through the sanction of legislation, administrative
rules or judicial order. To accept this view would be to accept
that any physical punishment, no matter how torturous and
cruel, can be considered lawful, as long as the punishment has
been duly promulgated under the domestic law of a State. 125
Rodley’s interpretation reduces the probability that the exception
will undermine the purpose of the CAT by defining lawful sanctions in
the context of international practices rather than national laws. Under
Rodley’s perspective, common international practices place restrictions
on the potential loophole of the lawful sanctions exemption, likely
keeping the exemption in check, thereby reducing the risk that the
exemption would weaken the CAT beyond repair.
III. U. S. LAW
Since the release of reports of abuse of detainees at the Abu Ghraib
prison in Baghdad in the spring of 2004, discussion of torture has pri-marily
focused on U. S. detainee interrogation policies and practices.
Like most nations, the United States officially denounces the use of
torture. 126 However, condemnation of torture does not in itself reveal
much. The devil is in the details. Once again, the critical question is:
22 FLOERSHEIMER CENTER OCCASIONAL PAPERS
what exactly does the government mean by the term “ torture” in con-demning
it? The answer illuminates what conduct is actually prohibited
and what conduct condoned or even encouraged.
Public officials involved in practices that have been criticized as
torturous insist that their agencies do not use torture. In a Senate Com-mittee
hearing, Porter J. Goss, the Director of the Central Intelligence
Agency, declared, “ We don’t do torture.” 127 However, he also attempted
to distinguish between what he defended as “ professional interrogation”
and torture. He claimed that professional interrogation techniques are
important tools for fighting terrorism and, unlike torture, are perfectly
lawful. 128 However, the clear distinction between the two categories
immediately fell apart with his claim that waterboarding, an interroga-tion
tactic currently employed by the CIA in which a prisoner is made
to believe that he is drowning, falls in the category of lawful profession-al
interrogation. One could easily reach the conclusion that waterboard-ing
amounts to torture under the CAT definition. 129
Torturous acts may violate a number of criminal laws in the United
States, including a handful of federal statutes and regulations that
specifically refer to the act of “ torture.” 130 Moreover, the judicial, leg-islative,
and executive branches have also examined the meaning of tor-ture
in the context of U. N. convention reservations, immigration and
extradition proceedings, tort claims, criminal sanctions, and military
policies. Without establishing a single, clear torture definition, these
decisions, statutes, rules, and regulations, taken together, depict a gen-eral
trend as to what constitutes torture in the U. S.
A. U. S. Ratification of the CAT
The CAT opened for signature in 1985; on April 18, 1990, the United
States signed the CAT; the Senate advised and consented to the ratifi-cation
of the CAT on October 27 of the same year; and the ratifying
documents were deposited to the U. N. on October 21, 1994.131 Thirty
days later, the CAT entered into force in the U. S. 132 The United States
adopted the CAT subject to a number of understandings, many of
which concern the definition of torture. 133 In particular, the U. S.
understandings ( 1) add the term “ specific” to the intent language, ( 2)
DEFINING TORTURE 23
define mental harm, ( 3) apply the torture definition “ only to acts
directed against persons in the offender’s custody or physical control,”
( 4) define lawful sanctions, and ( 5) define acquiescence by a public
official. These understandings are discussed more fully in Part II of
this paper, analyzing the CAT torture definition. Generally, while clari-fying
vague concepts, the understandings serve to narrow the circum-stances
to which the definition might apply.
For example, unlike the CAT, the U. S. understandings define
mental pain or suffering. While clarifying what may be considered too
vague a term, this understanding limits what may constitute mental
pain and suffering. 134 Furthermore, the definition is itself unclear. For
example, the requirement that the harm be “ prolonged” generates fur-ther
uncertainty. Mental pain and suffering is defined in terms of the
possible causes of the harm as opposed to the actual feeling that is cre-ated.
While delineating acceptable causes may assist in detecting mental
pain and suffering in the context of torture, it also adds a new poten-tially
limiting factor. There may be instances in which an individual
experiences severe mental pain or suffering but the harm did not arise
from one of the stated causes. As such, the act would not be deemed
torture under the U. S. understandings even though applying the CAT
directly may have led to a finding of torture.
The U. S. understandings also require specific intent while the
CAT does not use the word “ specific.” 135 As discussed above, it is
debatable whether the CAT requires specific or general intent. In order
to fully comprehend the U. S. understandings and its practical applica-tion,
it is essential to understand what is meant by specific intent.
Must a torturer have intended to cause the exact harm that occurs? Or
would it suffice if a torturer acted in a manner such that severe pain
was a foreseeable result? To date, the U. S. understandings have not
been analyzed or challenged in a torture case. However, interpretation
of the understandings is a critical step towards comprehending the U. S.
obligations under the CAT and other federal laws concerning torture.
24 FLOERSHEIMER CENTER OCCASIONAL PAPERS
B. Torture as Federal Crime
The CAT requires:
Each State Party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any terri-tory
under its jurisdiction…. Each State Party shall ensure that
all acts of torture are offences under its criminal law. The same
shall apply to an attempt to commit torture and to an act by any
person which constitutes complicity or participation in torture.
Each State Party shall make these offences punishable by appro-priate
penalties which take into account their grave nature. 136
Federal law does not criminalize torture committed within the United
States as such. The State Department has stated that legislation
specifically criminalizing torture was unnecessary because “ existing
criminal law was determined to be adequate to fulfil [ sic] the
Convention’s [ i. e., the CAT’s] prohibitory obligations, and in deference
to the federal- state relationship.” 137 However, federal law does pro-scribe
acts of torture outside the U. S. 138 Analysis of that provision, as
well as other federal criminal statutes that proscribe conduct that may
encompass acts of torture, follows.
1. 18 U. S. C. § 2340
To meet U. S. obligations under the CAT, in 1994 Congress crim-inalized
acts of torture committed “ outside the United States.” 139 For
these purposes, “ the United States” includes “ the several States of the
United States, the District of Columbia, and the commonwealths, terri-tories,
and possessions of the United States.” 140 The definition of tor-ture
in § 2340 is derived from the CAT141 and for the most part tracks
the text of the CAT definition. 142 Therefore, the common understand-ing
of each of the CAT elements of torture would appear to apply to §
2340.143 However, § 2340 incorporates the U. S. understanding to the
CAT, specifying and restricting the meaning of mental pain and suffer-ing
and including the specific intent requirement. These U. S. distinc-tions
are analyzed above in the discussion of the U. S. understandings to
the CAT. In addition, § 2340 does not include the list of purposes nec-essary
for the action to be considered torture. This silence potentially
DEFINING TORTURE 25
broadens the reach of § 2340 to torturous acts the purpose of which is
unknown or unconnected to the CAT’s list.
The meaning of the term torture under § 2340 has become con-troversial
as a result of recent DOJ memos. Over the last two years, the
DOJ has twice prepared legal memoranda analyzing the definition of
torture under § 2340. First, in August 2002, Jay S. Bybee and John Yoo
of the Office of Legal Counsel, submitted a memorandum to Alberto
Gonzales, then- Counsel to the President, regarding § 2340’ s definition
of torture. 144 This memo adopted an exceedingly narrow definition of
torture. Most notoriously, it concluded that the threshold for “ severe
pain” was extraordinarily high. In order for an act to amount to torture,
“[ t] he victim must experience intense pain or suffering of the kind that
is equivalent to the pain that would be associated with serious physical
injury so severe that death, organ failure, or permanent damage result-ing
in a loss of significant bodily function would likely result.” 145 It also
embraced a restrictive view of specific intent, requiring the torturer to
act with the precise and express objective of inflicting severe pain. 146
Released to the public on June 22, 2004, the BybeeBybee Memo
generated overwhelming criticism from the legal community. 147 In
response, Bush Administration officials backed away from the memo,
stating that it was overbroad and would be re- drafted. 148 On December
30, 2004, Daniel Levin, Acting Assistant Attorney General in the Office
of Legal Counsel, submitted a new memorandum to James B. Comey,
Deputy Attorney General (“ Levin Memo”). 149 The Levin Memo
supercedes the Bybee Memo in its entirety. Undercutting its own
importance, the Levin Memo notes that “ we have reviewed this Office’s
prior opinions addressing issues involving treatment of detainees and do
not believe that any of their conclusions would be different under the
standards set forth in this memorandum.” 150 The memo does, however,
provide new, less restrictive interpretations of key terms of the defini-tion
of torture under § 2340: ( 1) severe; ( 2) severe physical pain or suf-fering;
( 3) prolonged mental pain; and ( 4) specific intent. 151
First, the Levin Memo disagrees with the Bybee Memo’s limita-tion
of severe pain to “ excruciating and agonizing” pain, or to pain “ equi-valent
in intensity to the pain accompanying serious physical injury, such
as organ failure, impairment of bodily function, or even death.” 152
26 FLOERSHEIMER CENTER OCCASIONAL PAPERS
Rather, leaving the term relatively vague, the Levin Memo describes the
severe pain necessary for torture as falling below the level of excruciat-ing
pain, but above the level of pain derived from cruel and inhuman
treatment. 153
Second, according to the Levin Memo the term “ severe physical
pain or suffering” should be interpreted such that torture may involve
either severe physical suffering or severe physical pain. Standard princi-ples
of statutory construction indicate that severe physical pain must be
separate from severe physical suffering, otherwise the use of two sepa-rate
terms is surplassage. The memo does not fully explain the distinc-tion
between “ suffering” and “ pain.” 154 It does, however, state that
“ severe suffering” must be extended in duration as well as intensity,
whereas “ severe pain” need only be the latter. The basis of this precise
distinction is unclear.
While physical pain and suffering can be distinguished from one
another, it is not easy to separate mental pain from mental suffering.
Consistent with the U. S. understandings, § 2340 defines the two
together, lumping them together as “ prolonged mental harm.” As noted
above, the requirement that mental harm be prolonged to constitute
torture is extremely vague and potentially limiting. The Bybee Memo
read “ prolonged” to require “ months or even years” of pain or suffer-ing.
155 The Levin Memo merely opines that prolonged means of some
“ lasting duration,” leaving that phrase undefined. 156
Lastly, the Levin Memo reexamines the requirement that torturers
must have acted with specific intent. The memo acknowledges that the
term “ specific intent” is ambiguous and its meaning unsettled. It retracts
the Bybee Memo’s conclusion that the specific intent element requires
severe pain to be the torturer’s “‘ precise objective’ and that it was not
enough” to “ act with the knowledge that such pain ‘ was reasonably likely
to result from his actions’ . . . or ‘ is certain to occur.’” 157 But it does not
offer its own interpretation of the term. Rather, it merely states that “[ i] n
light of the President’s directive that the United States not engage in
torture, it would not be appropriate to rely on parsing the specific intent
element of the statute to approve as lawful conduct that might other-wise
amount to torture.” 158 The sentiment that the DOJ should not draft
a memo designed to immunize abuse through a hyper- technical, over
DEFINING TORTURE 27
legalistic statutory construction is refreshing. Nevertheless, the failure
of the Levin Memo to come to grips with the meaning of this essential
statutory term is unsatisfying and leaves the definition uncertain.
2. Other Federal Criminal Laws
No federal law specifically criminalizes torture perpetrated within
the United States. A handful of federal criminal statutes do refer to torture
generally. While these statutes do not offer a definitive answer to the
definition of torture under U. S. law, they nonetheless deserve attention.
First, the Federal Death Penalty Act (“ FDPA”) 159 authorizes a
sentencing jury to consider as an aggravating factor the fact that an
offense was committed in an “ especially heinous, cruel, or depraved
manner in that it involved torture or serious physical abuse to the vic-tim.”
160 Courts interpreting the FDPA have not relied on the § 2340
definition. For example, in United States v. Sampson, a U. S. District
Court applied a definition from Black’s Law Dictionary, under which
an act is “ torture” only if committed with intent to punish, or with
intent to exact a confession or information, or for sadistic pleasure. 161
These purposes were found to be necessary under the FDPA even
though § 2340 does not require specific purposes. Similarly, in U. S. v.
Chanthadara, the U. S. Court of Appeals for the Tenth Circuit refused
to apply the § 2340 torture definition in an FDPA case. 162 The court
reasoned that § 2340 does not apply because the FDPA is not part of
the same chapter as § 2340 and, unlike § 2340, the FDPA is not limit-ed
to persons acting under color of law. Without explanation, the court
held that the mental harm caused by torture under the FDPA need not
be prolonged as required by § 2340.163 With few cases interpreting tor-ture
under the FDPA, a clear trend as to whether the FDPA definition
of torture is more or less restrictive than the § 2340 definition has yet
to emerge. In fact, these cases do not lead to a firm conclusion as to
what the FDPA definition of torture is. Nonetheless, they do show that
courts do not necessarily apply the § 2340 torture definition in other
contexts.
28 FLOERSHEIMER CENTER OCCASIONAL PAPERS
There is one narrow instance in which torture is itself a federal
crime— where murder is perpetrated by torture against a child or chil-dren.
164 Here the statute incorporates § 2340 by reference, with the
one important, and appropriate, exception that it applies to purely pri-vate
conduct. 165
Finally, it is a federal crime to maim someone within the special
maritime and territorial jurisdiction of the United States with the intent
to torture. 166 The statute directly borrows the torture definition of §
2340:
Whoever, within the special maritime and territorial jurisdiction of
the United States, and with the intent to torture ( as defined in
section 2340), maim, or disfigure, cuts, bites, or slits the nose,
ear, or lip, or cuts out or disables the tongue, or puts out or
destroys an eye, or cuts off or disables a limb or any member of
another person; or Whoever . . . with like intent, throws or pours
upon another person, any scalding water, corrosive acid or caus-tic
substance— Shall be fined under this title or imprisoned not
more than twenty years, or both. 167
There are no reported cases interpreting the definition of torture under
this statute.
C. Federal Civil Liability for Torture
Three statutes affecting civil liability for torture deserve consideration.
These are the Torture Victim Protection Act (“ TVPA”), the Alien Tort
Claims Act (“ ATS”), and the Foreign Sovereign Immunities Act (“ FSIA”).
1. TVPA
The TVPA, enacted in 1991, provides that “ an individual who, under
actual or apparent authority, or color of law, of any foreign nation . . .
subjects an individual to torture shall, in a civil action, be liable for
damages to that individual.” 168 The TVPA uses a modified version of the
CAT and § 2340 definitions of torture. 169 The TVPA definition is
essentially the § 2340 definition, absent the words “ specifically intended”
DEFINING TORTURE 29
and including the CAT purpose requirement. 170 Case law interprets the
TVPA definition of torture differently than that of § 2340. For example,
the court in Sinaltrainal v. Coca- Cola Co. held that a corporation is a
“ person” and so can commit torture. 171 Reasoning that the law often
treats corporations as persons, “ it is reasonable to conclude that had
Congress intended to exclude corporations from liability under the
TVPA, it could and would have expressly stated so.” 172
In Xuncax v. Gramajo, a federal district court deemed the combi-nation
of the following acts of abuse during interrogation by the
Guatemalan military to be torture: blindfolding, repeated acts of rape,
burning with cigarettes, beating, and lowering into a foul- smelling
pit. 173 The case also analyzed the requirement that the victim be in the
offender’s “ custody or physical control.” 174 The defendant argued that
the custody requirement was not met because the plaintiff was never
actually in his “ personal custody.” 175 Relying on the relevant Senate
Report, the court found that, as “ a higher official need not have person-ally
performed or ordered the abuses in order to be held liable,” having
the authority and discretion to order an individual’s release can estab-lish
“ custody” for the purposes of defining torture. 176
Courts have applied the TVPA to particular fact patterns on a
number of occasions without in- depth discussion of the definition of
torture. In Hilao v. Estate of Marcos, the court without explanation
identified the combination of the following as torture: interrogation
coupled with blindfolding, beating while handcuffed and fettered, denial
of sleep, threats of electric shock and death, shackling limbs to a cot
while towel was placed over nose and mouth, and pouring water down
nostrils to trigger a drowning sensation. 177 In Mehinovic v. Vuckovic,
the court concluded that interrogations coupled with severe beatings on
all parts of the body, including dislocating a finger and beating genitals
constituted torture, and instilling fear of death during beatings and games
of “ Russian roulette” resulted in prolonged mental harm amounting to
torture. 178 The court in Daliberti v. Republic of Iraq found that physical
and mental harm from threats of death, cutting off fingers, pulling out
fingernails, and electric shocks to the testicles constituted torture. 179
Because these cases represent abuse in the extreme, 180 they do little to
help categorize cases involving less severe, yet still heinous, acts.
30 FLOERSHEIMER CENTER OCCASIONAL PAPERS
2. ATS
Passed in 1789, the ATS provides the federal courts with jurisdic-tion
over “ any civil action by an alien for a tort only, committed in viola-tion
of the law of nations or a treaty of the United States.” 181 In 2004,
in Sosa v. Alvarez- Machain, the Supreme Court ruled that the ATS is
jurisdictional in nature and does not in itself provide a cause of action. 182
However, the ATS may be used to create a new cause of action con-cerning
a violation of a norm of customary international law “ defined
with a specificity comparable to the features of the 18th- century para-digms.”
183
While the ATS was only utilized once in its first 170 years, it has
emerged as a popular tool for redress in U. S. courts of international
human rights violations. 184 The rediscovery of the ATS began with the
case of Filartiga v. Peña- Irala. 185 In Filartiga, the plaintiffs, a Para-guayan
father and daughter, claimed that Paraguayan officials perpetrat-ed
acts of torture causing the death of plaintiffs’ son and brother. The
court found it had jurisdiction over the ATS claims. Since Filartiga,
courts have heard suits seeking redress for human rights violations such
as torture, kidnapping, and extrajudicial killings. 186 The ATS does not
in itself define or prohibit torture. Thus, an ATS case would likely uti-lize
the CAT for a relevant definition of torture. 187
3. FSIA
The Foreign Sovereign Immunities Act (“ FSIA”) was enacted in
1976 and amended in 1996 to include torture as an exception to juris-dictional
immunity of a foreign state. 188 The FSIA denies foreign sover-eigns
immunity where
money damages are sought against a foreign state for personal
injury or death that was caused by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision of
material supper or resources… for such an act or provision of
material support is engaged in by an official, employee, or agent
of such foreign state while acting within the scope of his or her
office, employment, or agency…. 189
DEFINING TORTURE 31
The FSIA explicitly adopts the TVPA’s definition of torture. 190 As
with the TVPA, most of the FSIA cases do not provide much assistance
in pinpointing the definition of torture in that they represent extreme
cases of abuse that unquestionably qualify as torture. For example, in
Cicippio v. Islamic Republic of Iran, the court held that plaintiffs were
tortured by members of an Iranian paramilitary organization controlled
by the government when they were taken hostage, interrogated, blind-folded,
chained, given poor food, regularly beaten, threatened with cas-tration
and imminent death, shackled in stooped positions, and subject-ed
to electric shock, causing severe depression and mental anguish. 191
Courts have made clear that torture under the FSIA is a special
term—“ torture does not automatically result whenever individuals in
official custody are subjected even to direct physical assault. Not all
police brutality, not every instance of excessive force used against pris-oners,
is torture under the FSIA.” 192 Yet, courts have not specified how
to draw this definitional line. In Simpson v. Socialist People’s Libyan
Arab Jamahiriya, the plaintiff was interrogated, held incommunicado,
threatened with death, separated from her husband and unable to learn
of her husband’s welfare. The D. C. Circuit found that plaintiff was not
tortured under the meaning of the FSIA. 193 Relying on various TVPA
decisions, the court reasoned that although cruel, the acts were not “ so
unusually cruel or sufficiently extreme and outrageous as to constitute
torture.” 194 Thus, claims that do not involve extreme acts will not
amount to torture under FSIA. In Price v. Socialist People’s Libyan Arab
Jamahiriya, the court required factual evidence as to the exact method
of infliction of pain. 195 There, allegations of physical abuse were insuf-ficient
to withstand a motion to dismiss because they lacked details
regarding the frequency and duration of beatings, parts of the body at
which beatings were aimed, and weapons used to carry them out. Such
information was deemed essential to determine if the acts were actually
torture or just “ police brutality that falls short of torture.” 196
D. Torture and Deportation
In 1988, Congress enacted the Foreign Affairs Reform and
Restructuring Act ( the “ FARR Act”), implementing the CAT directive
32 FLOERSHEIMER CENTER OCCASIONAL PAPERS
that signatories must ensure that individuals are not deported or extra-dited
to countries where they are likely to be tortured. 197 In 1999, the
INS promulgated implementing regulations, outlining procedures for
handling cases in which aliens invoke their CAT rights. 198 These regu-lations
include a definition of torture that is a compilation of the CAT
definition and the U. S. understandings to the CAT, similar but not
identical to the § 2340 definition. 199 In most of the cases involving the
FARR Act, the discussion ends with a finding of insufficient evidence
that the petitioner is likely to be tortured upon return to their coun-try.
200 Courts generally do not reach the question of what constitutes
torture. Indeed, they rarely even reach the question of whether the
prior experiences of the petitioner amounted to torture.
The few cases that do analyze whether the petitioner has been or
will be subjected to torture tend to describe the details of the abuse
and then summarily conclude that the acts do or do not amount to tor-ture
without explanation. 201 In Sackie v. Ashcroft, for example, the
court held that Mr. Sackie was tortured during his conscription into the
National Patriotic Front of Liberia and later a rebel army. 202 As a child
soldier, he was frequently abused, threatened with imminent death,
given mind- altering substances, suffered cuts to his back and arms, and
forced to kill women and children. The court found that under the
FARR Act, the resulting prolonged mental harm amounted to tor-ture.
203 On the other end of the spectrum, in Quant v. Ashcroft, the
court held that verbal abuse and a push do not constitute torture under
the FARR Act. 204
E. Torture Victim Relief Act of 1998
The Torture Victim Relief Act of 1998 (“ TVRA”) authorizes the
President to provide grants for the “ rehabilitation of victims of
torture.” 205 The TVRA’s findings include a descriptive definition of tor-ture
that is more colloquial in tone and substance: “ Torture is the
deliberate mental and physical damage caused by governments to indi-viduals
to destroy individual personality and terrorize society. The
effects of torture are long term. Those effects can last a lifetime for
the survivors and affect future generations.” 206 These findings appear
to incorporate the reason for assisting torture victims in the under-
DEFINING TORTURE 33
standing of what constitutes torture.
The TVRA explicitly adopts the § 2340 torture definition, with
one addition: “ the use of rape and other forms of sexual violence by a
person acting under color of law upon another person under his cus-tody
or physical control.” 207 The addition of rape and other forms of
sexual violence is seemingly unnecessary, as one could have easily inter-preted
§ 2340 as already covering these forms of abuse. Read in tan-dem,
however, these two statutes now call into question whether the §
2340 definition includes rape. Alternatively, the TVRA can be read sim-ply
to make explicit what the § 2340 definition already included.
F. Torture and Military Policy
In July 2003, the Department of Defense promulgated rules that pro-vide
guidance for crimes that may be tried by military commissions,
including torture. 208 This regulation employs a definition of torture
similar to § 2340 with a few important distinctions. First, the conduct
must have taken place “ in the context of” and be “ associated with
armed conflict.” 209 In addition to the lawful sanctions exemption, the
regulation states that torture “ does not include the incidental infliction
of pain or suffering associated with the legitimate conduct of hostili-ties.”
210 The regulation does not define “ incidental infliction” or “ legiti-mate
conduct of hostilities.” Like the CAT’s corresponding exemption
for activities that are part of the imposition of lawful sanctions, this
exemption could swallow the rule, since much of what the military does
might be classified as an aspect of “ legitimate conduct of hostilities.”
Importantly, unlike § 2340, the Department of Defense regula-tion
defines the term “ prolonged mental harm”— it is “ harm of some
sustained duration, though not necessarily permanent in nature, such
as a clinically identifiable mental disorder.” 211 While potentially useful
to pinpoint the meaning of prolonged mental harm, this clarifying defi-nition
may unduly restrict the practical application of the crime of torture.
On May 11, 2005, President Bush signed a bill for Emergency
Supplemental Appropriations for Defense, the Global War on Terror,
and Tsunami Relief for the Fiscal Year Ending September 20, 2005.212
Section 6057( a) ( 1) of this new law provides that
34 FLOERSHEIMER CENTER OCCASIONAL PAPERS
None of the funds appropriated or otherwise made available by
this Act shall be obligated or expended to subject any person in
the custody or under physical control of the United States to
torture or cruel, inhuman, or degrading treatment or punishment
that is prohibited by the Constitution, laws, or treaties of the
United States.
Section 6057( b)( 1) further states that “ the term ‘ torture’ has the
meaning given that term in section 2340( 1) of title 18, United States
Code.” By referencing an existing statutory definition, this statute con-sequently
does not alter the U. S. definition of torture.
G. Overview of U. S. Torture Definition
The United States is a prime example of the lack of uniformity in the
definition of torture, illustrating not only that the definition of torture
differs among countries, but at times within a single country. Although
each of the U. S. laws that involve torture are derived from the CAT
( often including the U. S. understandings of the CAT), there remains
much confusion as to the definition of torture in the United States.
The Department of Justice’s recent change in position regarding the
definition is a strong indication that clarity is needed. Even the Levin
Memo leaves many elements of the definition of torture extremely
vague. Clarifications to the definition of torture through understand-ings
to the CAT, statutory definitions, and court decisions have either
muddled or narrowed the definition.
Courts interpreting the FDPA, TVPA, and the FARR Act tend to
summarily determine whether conduct is torture with little regard to
the uncertainty of the definition. Given the universal condemnation of
torture, it is startling that many U. S. courts gloss over the debate
regarding the formal definition, choosing instead to take a page from
the obscenity playbook—“ I know it when I see it.” 213 Such informality
and subjectivity is unacceptable given the seriousness of the issue. In
times of crisis, when the government is most apt to exercise poor judg-ment,
the lack of a precise definition of torture leaves government
agents uncertain of the standard by which they are bound. This failure
provides the space for justifying torturous conduct. It is exceptionally
DEFINING TORTURE 35
disturbing that the executive branch has received such feeble guidance
from the courts as to the definition of torture and thus the acceptable
limits on interrogation. In light of allegations of torture perpetrated by
U. S. officials, it is essential that the government close any potential
loopholes for permitting torture.
IV. CONCLUSION
The universal condemnation of torture has gained jus cogens status.
When the U. N. adopted the CAT, the international community took
an important step towards eradicating torture. However, horrific events
of the past few years, including detainee abuse at Abu Ghraib, demon-strate
that much is yet to be done to accomplish this goal. Torture per-sists.
What accounts for the continued prevalence of torture despite
the unanimity of the international community’s opposition? While
remarkable events, including terrorism and September 11th, have cer-tainly
played a role, such pressures are likely to always exist. Under
these circumstances, it is all the more essential that international
agreements prohibiting torture are effective. A key reason that the
CAT’s potential to curb torture has remained unfulfilled is the lack of
a clear definition.
As the Supreme Court of Israel has explained, successful interro-gation
requires a measure of discomfort and an unequal balance of
power. 214 The challenge is to draw the line separating permissible levels
of discomfort from unlawful acts. Richard Posner suggests that “ torture”
begins at “ the point along a continuum at which the observer’s queasi-ness
turns to revulsion,” 215 a formulation that captures something
important but which is, of course, hopelessly subjective, impossible to
enforce, and useless as a guide to permissible conduct. This type of
intuitive understanding of torture must be translated into a precise legal
definition which will be accepted and adhered to universally.
The CAT creates a useful framework for defining torture. But the
implementation of the CAT is flawed. First, there appears to be dis-agreement
regarding the meanings of each element of the CAT defini-tion.
Consensus must be reached. The U. N. should play a more active
role in clarifying inconsistent interpretations and applications of the
36 FLOERSHEIMER CENTER OCCASIONAL PAPERS
CAT. Torturers must not be placated by creating narrow definitions of
torture, thereby undermining international agreement as to the univer-sal
prohibition on torture. Second, allowing states to employ their own
language defining torture has created a plethora of definitions. Those
countries that have ratified the CAT should agree to apply the CAT
definition in their own laws, making the CAT definition binding.
The international legal community must not passively allow tor-ture
to continue in the guise of necessary interrogation practices. The
impressive world- wide prohibition of torture must be honored rather
than co- opted by legal sleight- of- hand. The term torture is more than
legal jargon— it also carries the weight of humanity’s basic sense of
morality. Consequently, when used by governments, its legal meaning
must be precise, fair, and universal.
Endnotes
* Administrative Director/ Research Scholar, Floersheimer Center for Constitutional Democracy,
Benjamin N. Cardozo School of Law. I am especially grateful to Michael Herz and Dean David
Rudenstine, Co- Directors of the Floersheimer Center, for their guidance, patience, and thought-ful
comments. Avi Cover, Martin S. Flaherty, Malvina Halberstam, and Marshall L. Miller were
good enough to read an earlier draft and provided invaluable comments and suggestions. Many
thanks also to Cardozo students Chris Fugarino, John Godfrey, Emma Gottlieb, and Dotan
Weinman, who were enormously helpful in compiling the appendix.
1 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 U. N. T. S. 85 [ hereinafter
“ CAT”].
2 See Appendix for a chart setting out the definitions of torture provided in the U. N.
Committee on Torture State Reports.
3 The definition of “ cruel, inhuman and degrading treatment” has also recently emerged as a
critical human rights issue. While this paper focuses on torture, a clear definition of cruel,
inhuman and degrading treatment is needed as well.
4 See Henry Shue, Torture, in TORTURE: A COLLECTION 47, 47 ( Sanford Levinson ed., 2004);
see also Jean Bethke Elshtain, Reflection on the Problem of “ Dirty Hands,” in TORTURE: A
COLLECTION, at 77.
DEFINING TORTURE 37
5 For photographs and detailed accounts of the abuse, see http:// en. wikipedia. org/ wiki/ Nature_
of_ Abu_ Ghraib_ abuse ( last visited July 25, 2005).
6 Prosecutor v. Furundija, ICTFY, Case No.: IT- 95- 17/ 1- T, at 9 ( Dec. 10, 1998).
7 See Henry Shue, in TORTURE: A COLLECTION, supra note 4, at 47.
8 Article 53 of the Vienna Convention on the Law of Treaties lists four criteria for peremptory
norms: “( 1) They are norms of general international law. ( 2) They have to be accepted by the
international community of States as a whole. ( 3) They permit no derogation. ( 4) They can be
modified only by new peremptory norms.” LAURI HANNIKANINEN, PEREMPTORY NORMS ( JUS
COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 3
( 1988).
9 Furundija, at 9. The jus cogens nature of the prohibition of torture is widely accepted. See
United Kingdom House of Lords: Regina Bartle and the Commissioner of Police for the Metro-polis
and Other Ex Parte Pinoche, 38 I. L. M. 581, 589 ( March 24, 1999) ( opinion of Lord
Browne- Wilkinson); Siderman de Blake v. Republic of Argentina, 965 F. 2d 699, 714- 717 ( 9th
Cir. 1992), cert. denied, 507 U. S. 1017 ( 1993); see also HANNIKAINEN, supra note 8, at 509, 718
( 1988).
10 45 Am. Jur. 2d Int’l Law § 1 ( 2004).
11 Id.
12 Public Committee Against Torture in Israel v. Israel, 38 L. L. M. 147, HCJ 5100/ 94 ( 1999).
These techniques included subjecting individuals under interrogation to: ( 1) shaking, ( 2)
crouching, ( 3) cuffing with particularly small hand and ankle cuffs, ( 4) the “ Shabach” position
( seating on low chair, tilted forward), ( 5) covering the head with an opaque sack, ( 6) powerfully
loud music, and ( 7) the “ Shabach” method ( a combination of ( 4), ( 5), and ( 6)). In Office of the
High Commissioner for Human Rights, Conclusions and Recommendations of the Committee
against Torture: Israel, U. N. Doc. CAT/ C/ XXVII/ Concl. 5. ( November 23, 2001), the U. N. sug-gested
that these Israeli interrogation techniques amount to torture.
13 Public Committee against Torture in Israel, at ¶ ¶ 24- 30.
14 Id. at ¶ ¶ 133- 34.
15 Two years before this decision, the U. N. Committee against Torture advised Israel that many
of its interrogation techniques constituted torture. Those methods included ( 1) painful restrain-ing,
( 2) hooding under certain conditions, ( 3) playing loud music for prolonged periods, ( 4)
sleep deprivation for prolonged periods, ( 5) threats, ( 6) violent shaking, and ( 7) using cold air to
chill. See Concluding Observations of the Committee Against Torture: Israel, U. N. Doc.
A/ 52/ 44, ¶ ¶ 253- 260 ( 1997).
16 Furundija, ICTFY, Case No.: IT- 95- 17/ 1- T at ¶ 156. But see HANNIKAINEN, supra note 8, at
7. Some interpret the prohibition of derogation to be limited to provisions in international
treaties as opposed to any act that violates the peremptory norm. Hannikainen is of the view
that jus cogens must encompass any act that conflicts with a given norm, not simply acts which
conflict with formal treaty language.
17 AMNESTY INTERNATIONAL, REPORT ON TORTURE 29- 30 ( 1973).
38 FLOERSHEIMER CENTER OCCASIONAL PAPERS
18 The U. S. Department of Justice’s reinterpretation of the legal definition of torture highlights
both the unstable meaning of the term and the significance placed on defining torture. See
Memorandum from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel,
to James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U. S. C.
§ § 2340- 2340A ( December 30, 2004) [ hereinafter “ Levin Memo”]; Memorandum from Jay S.
Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to
the President, Re: Standards of Conduct for Interrogation Under 18 U. S. C. § § 2340- 2340A
( August 1, 2002) [ hereinafter “ Bybee Memo”]. ( Although the 2002 memo went out under Jay
Bybee’s name, it is universally understood to have been written primarily by Professor John Yoo
of the University of California at Berkeley, then deputy assistant attorney general in the Office
of Legal Counsel.) See also Department of Defense, Working Group Report on Detainee Interro-gations
in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational
Considerations ( April 4, 2003).
19 See Bybee Memo, supra note 18.
20 See Douglas Jehl, Questions Left By C. I. A. Chief On Torture Use, N. Y. TIMES, March 18,
2005, at A1.
21 “ Freedom from Torture ‘ Fundamental Right,’ Says Secretary- General,” SG/ SM/ 7855,
OBV/ 223 ( June 26, 2001), available at www. unis. unvienna. org/ unis/ pressrels/ 2001/ sgsm7855. html
( last visited July 25, 2005).
22 In December 1975, the United Nations adopted the Declaration on the Protection of All
Persons from Being Subjected to Torture or Other Cruel, Inhuman or Degrading Treatment or
Punishment, the precursor to the CAT. This declaration defined torture as
any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted by or at the instigation of a public official on a person for such purposes as
obtaining from him or a third person information or confession, punishing him for an
act he has committed or is suspected of having committed, or intimidating him or other
persons. It does not include pain or suffering arising only from, inherent in or incidental
to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the
Treatment of Prisoners. . . . Torture constitutes an aggravated and deliberate form of
cruel, inhuman or degrading treatment or punishment.
Earlier, in October 1975, the World Medical Assembly adopted the Declaration of Tokyo, Guide-lines
for Medical Doctors concerning Torture and Other Cruel, Inhuman or Degrading Treat-ment
or Punishment in relation to Detention and Imprisonment, in which torture is defined as
“ the deliberate, systematic or wanton infliction of physical or mental suffering by one or more
persons acting alone or on the orders of any authority, to force another person to yield informa-tion,
to make a confession, or for any other reason.” World Medical Association, 29th Assembly,
Declaration of Tokyo, Preamble to Guidelines for Medical Doctors concerning Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment in relation to Detention and Imprison-ment
( October 1975), available at www. cirp. org/ library/ ethics/ tokyo ( last visited July 25, 2005).
Later, in 1985, the Inter- American Convention to Prevent and Punish Torture defined torture
as “ any act intentionally performed whereby physical or mental pain or suffering is inflicted on a
person for purposes of criminal investigation, as a means of intimidation, as personal punishment,
as a preventative measure, as a penalty, or for any other purpose. Torture shall also be under-stood
to be the use of methods upon a person intended to obliterate the personality of the victim
or to diminish his physical or mental capabilities, even if they do not cause physical pain or
DEFINING TORTURE 39
mental anguish.” Inter- American Convention to Prevent and Punish Torture ( signed on
December 9, 1985 by the General Session of the Organization of American States),
Organization of American Treaty Series No. 67, Article 2.
23 The Convention has been ratified or acceded to by the following 139 States: Afghanistan,
Albania, Algeria, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan,
Bahrain, Bangladesh, Belarus, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina,
Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde,
Chad, Chile, China, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cuba, Cyprus, Czech
Republic, Democratic Republic of the Congo, Denmark, Djibouti, Ecuador, Egypt, Equatorial
Guinea, El Salvador, Estonia, Ethiopia, Finland, France, Gabon, Georgia, Germany, Ghana,
Greece, Guatemala, Guinea, Guyana, Holy See, Honduras, Hungary, Iceland, Indonesia, Ireland,
Israel, Italy, Japan, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lesotho,
Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Malawi, Maldives, Mali, Malta, Mauritius,
Mauritania, Mexico, Moldova, Monaco, Mongolia, Morocco, Mozambique, Namibia, Nepal,
Netherlands, New Zealand, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines,
Poland, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saint Vincent and the
Grenadines, Saudi Arabia, Senegal, Serbia and Montenegro, Seychelles, Sierra Leone, Slovak
Republic, Slovenia, Somalia, South Africa, Spain, Sri Lanka, Swaziland, Sweden, Switzerland,
Syrian Arab Republic, Tajikistan, Timor Leste, The former Yugoslav Republic of Macedonia,
Togo, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Kingdom, United States,
Uruguay, Uzbekistan, Venezuela, Yemen and Zambia. See Press Release, U. N., Information
Service, Committee Against Torture to Meet in Geneva, 2- 20 May 2005 ( April 28, 2005), avail-able
at www. un. org/ News/ Press/ docs/ 2005/ hr4831. doc. htm ( last visited July 25, 2005).
24 The United States ratified the CAT with reservations, understandings and declarations.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Reservations, Understandings and Declarations Made by the United States of America, available at
http:// www. unhchr. ch/ tbs/ doc. nsf/ 0/ 5d7ce66547377b1f802567fd0056b533? Open Document
( last visited July 25, 2005) [ hereinafter U. S. Reservations, Understandings and Declarations]. The
text of the American understandings can be found at infra note 133; see generally infra § III. A.
25 Prosecutor v. Furundija, ICTFY, Case No.: IT- 95- 17/ 1- T, at ¶ 160 ( Dec. 10, 1998).
26 CAT, supra note 1, at Art. 1. The definition of torture in the Rome Statute of the Inter-national
Criminal Court has elements in common with the CAT definition: “ Torture means the
intentional infliction of severe pain or suffering, whether physical or mental, upon a person in
the custody under the control of the accused; except that torture shall not include pain or suf-fering
arising only from, inherent in or incidental to, lawful sanctions.” Rome Statute of the
International Criminal Court, Art. 7( 2)( e) ( July 1, 2002).
27 “ Each State Party shall take effective legislative, administrative, judicial or other measures to
prevent acts of torture in any territory under its jurisdiction.” CAT, supra note 1, at Art. 2 § 1.
28 The Appendix lists the definitions of torture submitted to the U. N. Committee on Torture
from signatories to the CAT 2000 to 2005.
29 Article 19 of the CAT requires each state to submit a report to the monitoring body, the U. N.
Office of the High Commissioner for Human Rights, detailing the legislative and judicial steps
taken to comply with the CAT to prevent torture and to ensure the individual’s right not to be
tortured. CAT, supra note 1, at Art. 19. Reports are due one year after the CAT enters into force
and every four years thereafter. This paper uses the State Reports as the source of information
40 FLOERSHEIMER CENTER OCCASIONAL PAPERS
for the laws of individual nations. See Appendix.
30 CAT, supra note 1, at Art. 1.
31 See generally AHCENE BOULESBAA, THE U. N. CONVENTION ON TORTURE AND THE PROSPECTS
FOR ENFORCEMENT 9- 15 ( Martinus Nijhoff Publishers 1999); id. at 15 (“ The object and purpose
of the Torture Convention are the regulation and prohibition of all governmental conduct that
inflicts pain or suffering for the ends stated in Article I, regardless of whether such conduct is
affirmative or negative . . . negative acts may inflict as much physical and mental harm as posi-tive
acts and achieve the same inhuman ends.”).
32 See id. (“[ a] n omission is an ‘ act’ where there is a legal duty to act and, as the legal duty of
States to act in this respect has been established in the previous international conventions, it
would be absurd to conclude that the prohibition of torture in the context of Article 1 does not
extend to conduct by way of omission.”); HERMAN J. 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 118 ( Martinus
Nijhoff Publishers 1988) (“[ I] n special cases an omission should be assimilated to an act. The
intentional failure to provide a prisoner with food or drink could be a case in point.”).
33 See Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
United Kingdom, U. N. Doc. CAT/ C/ 67/ Add. 2, at ¶ 39, available at http:// www. unhchr. ch/ tbs/
doc. nsf/( Symbol)/ CAT. C. 67. Add. 2. En? Opendocument ( last visited July 25, 2005).
34 See Consideration of Reports Submitted by State Parties under Article 19 of the Convention,
Canada, U. N. Doc. CAT/ C/ 55/ Add. 8, at ¶ 14, available at http:// www. unhchr. ch/ tbs/ doc. nsf/
( Symbol)/ 93896f2f7b045cbdc125702a00364545? Opendocument ( last visited July 25, 2005).
35 Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
Committee against Torture, Colombia, U. N. Doc. CAT/ C/ 39/ Add. 4, at ¶ 121 ( emphasis added),
available at http:// www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/ CAT. C. 39. Add. 4. En? Opendocument ( last
visited July 25, 2005), citing PENAL CODE [ PENAL C.] Art. 279. Spain’s Penal Code also
prohibits public officials from “ subject[ ing a victim] to conditions or procedures which by their
nature, duration or other circumstances cause him physical or mental suffering….” Consideration
of Reports Submitted By State Parties under Article 19 of the Convention, Spain, U. N. Doc.
CAT/ C/ 55/ Add. 5, at ¶ 16, available at http:// www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/ CAT. C. 55.
Add. 5. En? Opendocument ( last visited July 25, 2005).
36 Consideration of Reports Submitted By State Parties under Article 19 of the Convention, Czech
Rep., U. N. Doc. CAT/ C/ 60/ Add. 1, at ¶ 3 ( emphasis added), available at http:// www. unhchr. ch
/ tbs/ doc. nsf/( Symbol)/ CAT. C. 60. Add. 1. En? OpenDocument ( last visited July 25, 2005), citing
Act No. 141/ 1961 Coll.
37 Under the Greek Penal Code, Art. 137( A)( 2), torture is “( a) any systematic infliction of acute
physical pain; ( b) any systematic infliction of physical exhaustion endangering the health of a
person; ( c) any systematic infliction of mental suffering, which could lead to severe physical
damage; ( d) any illegal use of chemical, drugs or other natural or artificial means aiming at
bending the victim’s will.” Consideration of Reports Submitted By State Parties under Article 19 of
the Convention, Greece, U. N. Doc. CAT/ C/ 61/ Add. 1, at ¶ 230, available at http:// www. unhchr
. ch/ tbs/ doc. nsf/( Symbol)/ CAT. C. 61. Add. 1. En? Opendocument ( last visited July 25, 2005).
DEFINING TORTURE 41
38 Consideration of Reports Submitted By State Parties under Article 19 of the Convention, Lat.,
U. N. Doc. CAT/ C/ 21/ Add. 4, at ¶ 6, citing Latvian Supreme Court, Decision: On Application of
Criminal Laws in Cases of Infliction of Intentional Bodily Injuries ( 1993), available at http:// www.
unhchr. ch/ tbs/ doc. nsf/( Symbol)/ CAT. C. 21. Add. 4. En? OpenDocument ( last visited July 25, 2005).
39 Id.
40 CAT, supra note 1, at Art. 1, § 1.
41 The Greek Case, YEAR BOOK OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 12 ( 1969).
42 Three governments, Denmark, Norway, and Sweden, also alleged torture to political prison-ers
detained in Greece. See id.
43 The European Convention for the Protection of Human Rights and Fundamental Freedoms,
213 U. N. T. S. 222, Art. 3 ( November 4, 1950) (“ No one shall be subjected to torture or to inhu-man
or degrading treatment or punishment.”).
44 The Greek Case, YEAR BOOK OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 186
( 1969) ( emphasis added).
45 See, e. g., Ireland v. United Kingdom, 25 Eur. Ct. H. R. ( ser. A) 5, 66 ( 1978); but see Malcolm
D. Evans, Getting to Grips with Torture, 51 ICLQ 365, 372- 73 ( 2002) (“[ I] f one scratches
beneath the surface of most cases, it becomes apparent that the Commission and Court have
never fully subscribed to the severity of suffering approach, despite their mantra- like espousal of
it over the years. . . . [ T] he court accepts openly that the severity of suffering is only one element
of an increasingly complex matrix, saying [ in Keenan v. UK]: ‘ While it is true that the severity of
suffering, physical or mental, attributable to a particular measure has been a significant consid-eration
in many cases decided by the Court under Article 3, there are circumstances where
proof of the actual effect on the person may not be a major factor’.”).
46 Republic of Ireland v. The United Kingdom, 2 E. H. R. R. 25, 36 ( 1979- 80). The five tech-niques
were wall- standing, hooding, subjection to noise, deprivation of sleep, and deprivation of
food and drink.
47 Id. at 36.
48 Id. at 36- 37.
49 Notably, the CAT does not define the term “ cruel, inhuman or degrading treatment or pun-ishment.”
50 Draft International Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, submitted by Sweden, U. N. Doc. No. E/ CN. 4/ 1285, Article 1 ( 1978).
The 1975 Declaration included this same language, see supra note 22. See also BURGERS &
DANELIUS, supra note 32, at 40- 41 ( discussing the legislative history of the provision defining
torture in relation to cruel, inhuman or degrading treatment).
51 CAT, supra note 1, at Art. 16.
52 The full title of the CAT, The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, in itself reflects the concept that torture is a particular
type of cruel, inhuman or degrading treatment. Interestingly, the United States’s ratification
reservations stated that the United States will be bound by Article 16’ s obligation to prevent
42 FLOERSHEIMER CENTER OCCASIONAL PAPERS
cruel, inhuman or degrading treatment only insofar as the term “ means the cruel, unusual and
inhuman treatment or punishment prohibited by the Fifth, Eighth, and/ or Fourteenth Amend-ments
to the Constitution of the United States.” However, the U. S. did not insist upon such a
limitation on the definition of torture. See U. S. Reservations, Understandings and Declarations,
supra note 24.
53 CAT, supra note 1, at Art. 2, § 2. Unlike the CAT’s treatment of the term torture, the CAT
does not provide a definition for cruel, inhuman or degrading treatment. CAT, supra note 1.
54 However, the International Covenant on Civil and Political Rights does not allow for excep-tion
in emergency situations for either torture or cruel, inhuman or degrading treatment or pun-ishment.
ICCPR, Arts. 4 & 7, G. A. Res. 2200A( XXI), U. N. Doc. A/ 6316 ( 1996), 999 U. N. T. S.
171, entered into force March 23, 1976.
55 Report of the Special Rapporteur, Sir Nigel S. Rodley, submitted pursuant to Commission on
Human Rights Resolution 1995/ 37, E/ CN. 4/ 1995/ 34 at ¶ 10 ( January 9, 1996); see Report of
the Special Rapporteur, Sir Nigel S. Rodley, submitted pursuant to Commission on Human
Rights Resolution 1992/ 32, E/ CN. 4/ 1996/ 35, at ¶ 21 ( January 12, 1995).
56 See Z and Others v. United Kingdom, 34 E. H. R. R. 3, C90 ( ECHR May 10, 2002) ( ECHR
found a heightened obligation to protect children from severe harm); see also Fionnuala Ní
Aoiláin, The European Convention on Human Rights and Its Prohibition on Torture, in TORTURE:
A COLLECTION, supra note 4, at 217.
57 Bybee Memo, supra note 18.
58 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. Doc, E/ CN. 4/ 1314, at 5 ¶ 27 ( 1978).
59 See Levin Memo, supra note 18, at 2, 8; see generally Bush Administration Documents on
Interrogation, WASH. POST, June 23, 2004, available at www. washingtonpost. com/ wp- dyn/
articles/ A62516- 2004Jun22. html ( last visited July 25, 2005).
60 The Republic of Ireland v. The United Kingdom, 2 E. H. R. R. 25 ( 1979- 80).
61 Id. at 36.
62 Id. at 36- 37.
63 “ The provisions of Egyptian law are broader and more general than those of the Convention,
since article 1 of the latter defines torture as any act by which severe pain or suffering is inflicted,
whereas Egyptian law imposes no prerequisites concerning the degree or extent of pain or suf-fering
. . . .” Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
Egypt, U. N. Doc. CAT/ C/ 34/ Add. 11, at ¶ 49, available at www. unhchr. ch/ tbs/ doc. nsf/( Symbol)
/ CAT. C. 34. Add. 11. En? OpenDocument ( last visited July 25, 2005).
64 Consideration of Reports Submitted By State Parties under Article 19 of the Convention, Lat.,
U. N. Doc. CAT/ C/ 21/ Add. 4, at ¶ 6, available at www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/ CAT. C.
21. Add. 4. En? OpenDocument ( emphasis added) ( last visited July 25, 2005).
DEFINING TORTURE 43
65 Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
Greece, U. N. Doc. CAT/ C/ 61/ Add. 2, at ¶ 230, available at www. unhchr. ch/ tbs/ doc. nsf/
( Symbol)/ CAT. C. 61. Add. 1. En? Opendocument ( last visited July 25, 2005); Consideration of
Reports Submitted By State Parties under Article 19 of the Convention, Luxembourg, U. N. Doc.
CAT/ C/ SR. 517, at ¶ 7, available at www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/ 4870d067077d49
bac1256a26004c2298? Opendocument ( last visited July 25, 2005).
66 CAT, supra note 1, at Art. 1, § 1. During the drafting of the CAT, the country of Barbados
suggested that the definition should be expanded to include torture methods where neither
physical nor mental harm is apparent, such as truth serum. This suggestion was ultimately not
included in the CAT. 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. Doc. E/ CN. 4/ 1314, at 5 ¶ 24 ( 1978).
67 U. S. Reservations, Understandings and Declarations, supra note 24. The full text of the under-standings
is set out at infra note 133. This definition of mental harm is also used in 18 U. S. C. §
2340 and 8 C. F. R. § 208.18.
68 See supra § II. A.
69 Consideration of Reports Submitted By State Parties under Article 19 of the Convention, Croat.,
U. N. Doc. CAT/ C/ 54/ Add. 3, at ¶ 12, available at http:// www. unhchr. ch/ tbs/ doc. nsf/( Symbol)
/ CAT. C. 54. Add. 3. En? OpenDocument ( last visited on July 25, 2005).
70 CAT, supra note 1, at Art. 1, § 1. In the United States a number of states prohibit acts con-sidered
torture to animals. This paper does not address those animal rights laws.
71 Selmouni v. France, 29 E. H. R. R. 403, 426 ( 2000).
72 Id. at 426- 27.
73 See Paniagua Morales v. Guatemala, Judgment of March 8, 1998, Inter- Am. Ct. H. R. ( Ser.
C) NO. 37 ( 1998), ¶ 134, available at http:// www. worldlii. org/ int/ cases/ IACHR/ 1998/ 3. html ( last
visited July 27, 2005). Article 5 of the American Convention on Human Rights states: “ No one
shall be subjected to torture or to cruel, inhuman, or degrading treatment.” For an analysis of
the Inter- American Court of Human Rights torture cases, see Julie Lantrip, Torture and Cruel,
Inhumane and Degrading Treatment in the Jurisprudence of the Inter- American Court of Human
Rights, 5 ILSA J. INT’L & COMP. L. 551 ( 1999).
74 Morales v. Guatemala, Judgment of March 8, 1998, Inter- Am. Ct. H. R. ( Ser. C) NO. 37
( 1998), ¶ 134.
75 Consideration of Reports Submitted By State Parties under Article 19 of the Convention, Lat.,
U. N. Doc. CAT/ C/ 21/ Add. 4, Latvia, at ¶ 6 ( emphasis added), available at http:// www. unhchr. ch
/ tbs/ doc. nsf/( Symbol)/ CAT. C. 21. Add. 4. En? OpenDocument ( last visited July 25, 2005).
76 In American law, a specific intent offense “ is one in which the definition of the crime: ( 1)
includes an intent to do some future act, or achieve some further consequence ( i. e., a special
motive for the conduct), beyond the conduct or result that constitutes the actus reus of the offense,
or ( 2) provides that the actor must be aware of a statutory attendant circumstance.” JOSHUA
DRESSLER, UNDERSTANDING CRIMINAL LAW 119 ( 2d ed. 1995).
44 FLOERSHEIMER CENTER OCCASIONAL PAPERS
77 The terms specific intent and general intent may prove to compound the difficulty in under-standing
the necessary intent, as there is much debate regarding the meaning of these terms in
themselves.
78 U. S. Reservations, Understandings and Declarations, supra note 24, at II( 1)( a).
79 The Department of Justice memo analyzes specific intent within the context of 18 U. S. C. §
2340, which includes the specific intent language added to the CAT by the U. S. understandings.
Id.
80 Levin Memo, supra note 18, at 16- 17. The Levin Memo withdraws the DOJ’s earlier pro-nouncement
that the torturer must have acted with “ express purpose of inflicting severe pain or
suffering”; mere knowledge that severe pain is reasonably likely to result from their actions or is
certain to occur is insufficient. However, the memo does not explicitly disagree with the Bybee
Memo’s analysis of specific intent, it simply refuses to define it. Id., citing Bybee Memo, supra
note 18, at 3- 4. The Bybee Memo’s stringent view of specific intent surprised many and con-flicts
with the drafting history of the CAT. Indeed, the U. S. suggestion that the intent require-ment
be formulated as deliberate and malicious was expressly rejected by the U. N. at the time
the CAT was drafted. See BURGERS & DANELIUS, supra note 32, at 41.
81 Levin Memo, supra note 18, at 17. Nevertheless, even the Bybee Memo notes that as a prac-tical
matter a jury may infer from the factual circumstances that when a defendant has knowl-edge
that their actions will produce a particular result, specific intent exists. Bybee Memo,
supra note 18, at 4.
82 Zubeda v. Ashcroft, 333 F. 3d 463, 473 ( 3d Cir. 2003) ( applying Immigration and Natural-ization
Service (“ INS”) regulations, 8 C. F. R. § 208.18, and interpreting the CAT to require gen-eral
intent as opposed to specific intent). The INS regulation regarding asylum applications adds
further language referring to the intent of the actor: “ An act that results in unanticipated or
unintended severity of pain and suffering is not torture.” 8 C. F. R. § 208.18( a)( 5). The INS regula-tions
concern instances where individuals apply to stay in the U. S. on the grounds that they will
likely be tortured if returned to their home country. See infra § III. D.
83 See Zubeda, 333 F. 3d at 474.
84 Auguste v. Ridge, 395 F. 3d 123, 144 ( 3d Cir. 2005) ( denying Haitian national’s request for
relief from deportation under the CAT, holding that detainment in Haitian prison does not con-stitute
torture because of lack of an act with the necessary intent).
85 See BURGERS & DANELIUS, supra note 32, at 41.
86 CAT, supra note 1, at Art. 1, § 1.
87 The legislative history of the U. N. Declaration Against Torture serves to illuminate the CAT
definitions because the first draft of the CAT incorporated a great deal of the Declaration’s exact
language. See BURGERS & DANELIUS, supra note 32, at 35.
88 NIGELS S. RODLEY, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 29 ( 1987),
citing Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders
Report, U. N. Doc. A/ CONF. 56/ 10 ( 1976).
89 Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprison-ment,
Summary Prepared by the Secretary- General in Accordance with Commission Resolution 18,
U. N. Doc. E/ CN. 4/ 1314 at 6, ¶ 28 ( 1978). The Swiss government concurred with this interpre-
DEFINING TORTURE 45
tation. Id. at ¶ 37. The United Kingdom’s suggestion to list the purposes rather than exemplify
the purposes ultimately failed. Id., Addendum 1, ¶ 5 ( 1979).
90 Prosecutor v. Delalic, ICTY, Case No. IT- 96- 21, Judgment ¶ 470 ( Trial Chamber II,
November 16, 1998) ( emphasis added).
91 See BURGERS & DANELIUS, supra note 32, at 118.
92 But see Foreign Affairs Reform and Restructuring Act of 1988 ( FARR Act) § 2242, Pub. L.
No. 105- 277, 112 Stat. 2681, 2681- 822 ( Oct. 21, 1998), codified at 8 U. S. C. § 1231; BLACK’S
LAW DICTIONARY 1335 ( Spec. Deluxe 5th ed. 1979), cited in U. S. v. Sampson, 335 F. Supp. 2d
166, 206 ( D. Mass. 2004) ( defining torture to mean the “ inflict[ ion of] intense pain to body or
mind for the purposes of punishment, to extract a confession or information, or for sadistic
pleasure”); see generally infra Part III.
93 Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
Indon., U. N. Doc. CAT/ C/ 47/ Add. 3, at ¶ 66, available at http:// www. unhchr. ch/ tbs/ doc. nsf/
( Symbol)/ CAT. C. 47. Add. 3. En? Opendocument ( last visited July 25, 2005).
94 Consideration of Reports Submitted By State Parties under Article 19 of the Convention, Spain,
U. N. Doc. CAT/ C/ 55/ Add. 5, at ¶ 16, available at http:// www. unhchr. ch/ tbs/ doc. nsf/( Symbol)/
CAT. C. 55. Add. 5. En? Opendocument ( last visited July 25, 2005), citing Spanish Penal Code,
Art. 174.
95 See 18 U. S. C. 2340( 1) ( 2004) (“‘ torture’ means an act committed by a person acting under
the color of law specifically intended to inflict severe physical or mental pain or suffering ( other
than pain or suffering incidental to lawful sanctions) upon another person within his custody or
physical control.”).
96 CAT, supra note 1, at Art. 1, § 1.
97 Questions of the Human Rights of All Persons Subjected to Any Form of Detention or Imprison-ment,
Summary Prepared by the Secretary- General in Accordance with Commission Resolution 18,
U. N. Doc. E/ CN. 4/ 1314, at 6, ¶ 29 ( 1978). This paper does not address laws that pertain to
acts by private individuals which may be called “ torture” under the law. Feminist scholars have
criticized the CAT torture definition for narrowing torture to acts committed in the male- domi-nated
public sphere, ignoring the ways in which women often experience violence. See Lori A.
Nessel, “ Willful Blindness” to Gender- Based Violence Abroad: United States’ Implementation of
Article Three of the United Nations Convention Against Torture, 89 MINN. L. REV. 71, 114 ( 2004).
98 Khouzam v. Ashcroft, 361 F. 3d 161, 171 ( 2d Cir. 2004) ( overturning an administrative deci-sion
denying immigration relief under the CAT, and holding that Khouzam was likely to be tor-tured
if returned to Egypt).
99 Office of the United Nations High Commissioner for Human Rights, Human Rights Fact
Sheet: No. 4 Combating Torture, at 34 ( May 2002).
46 FLOERSHEIMER CENTER OCCASIONAL PAPERS
100 Z v. The United Kingdom, 34 E. H. R. R. 3 ( ECHR 2001). See also E. v. United Kingdom, 36
E. H. R. R. 31, ¶ 88 ( ECHR 2002) ( holding that failure to protect children from sexual abuse by
stepfather constituted violation of Article 3 of the ECHR). While the court in Z. v. The United
Kingdom found a violation of Art. 3 for inhuman or degrading treatment, its reasoning does not
distinguish between torture and inhuman or degrading treatment and thus the accountability of
public officials for the actions of private parties would extend to cases of torture as well.
101 Z v. The United Kingdom, at ¶ 73.
102 Id. at ¶ ¶ 69- 75.
103 Id. at ¶ 74.
104 Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
Guatemala, U. N. Doc. CAT/ C/ 49/ Add. 2, at ¶ 9, available at http:// www. unhchr. ch/ tbs/ doc. nsf/
( Symbol)/ CAT. C. 49. Add. 2. En? Opendocument ( last visited July 25, 2005).
105 Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
Croatia, U. N. Doc. CAT/ C/ 54/ Add. 3, at ¶ 12, available at http:// www. unhchr. ch/ tbs/ doc. nsf/
( Symbol)/ CAT. C. 54. Add. 3. En? Opendocument ( last visited July 25, 2005).
106 Consideration of Reports Submitted By State Parties under Article 19 of the Convention,
Iceland, U. N. Doc. CAT/ C/ 59/ Add. 2, at ¶ 58, available at http:// www. unhchr. ch/ tbs/ doc. nsf/
( Symbol)/ CAT. C. 59. Add. 2. En? Opendocument ( last visited July 25, 2005).
107 U. S. Reservations, Declarations and Understandings, supra note 24. The first draft of under-standings
required the public official to have “ knowledge” of such activity. However, the knowl-edge
requirement was changed to mere “ awareness” after the Senate Foreign Relations
Committee expressed concern that the conditions “‘ created the impression that the United
States was not serious in its commitment to end torture worldwide’.” Khouzam, 361 F. 3d at 170,
citing S. Exec. Rep. 101- 30, at 4, 9 ( 1990).
108 The U. S. Department of Justice explained that the requirement for custody or physical con-trol
“ is intended to clarify the point that the convention does not apply to situations before cus-tody
is obtained.” Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment, Treaty Doc. 100- 20: Hearing Before the Senate Comm. on Foreign Relations,
101st Cong. 14 ( 1990) ( statement of Mark Richard, Deputy Assistant Attorney General, U. S.
Department of Justice, Criminal Division). But see Pascual- Garcia v. Ashcroft, No. 02- 71844,
slip op. at 4 ( 9th Cir. Aug. 6, 2003) ( unpublished opinion) ( remanding petitioner’s claim for asy-lum
relief and holding that “ a CAT claim does not require that the torture would occur while
the victim is in the custody or physical control of a public official”).
109 Zheng v. Ashcroft, 332 F. 3d 1186, 1194 ( 9th Cir. 2003).
110 Id. at 1196- 97.
111 Id. at 1189.
112 Id. at 1194, citing Committee on Foreign Relations, Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. 101- 30, at 9 ( 1990).
DEFINING TORTURE 47
113 Ontunez- Tursios v. Ashcroft, 303 F. 3d 341, 355 ( 5th Cir. 2002). This position was later
adopted by the Second Circuit, which held that “[ i] n terms of state action, torture requires only
that government officials know of or remain willfully blind to an act and thereafter breach their
legal responsibility to prevent it.” Khouzam, 361 F. 3d at 170- 71.
114 CAT, supra note 1, at Art. 1, § 1.
115 For analyses of the drafting history of the lawful sanctions exemption, see BOULESBAA, supra
note 31, at 30- 35; RODLEY, supra note 88, at 29- 30.
116 Draft International Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, submitted by Sweden, U. N. Doc. E/ CN. 4/ 1285 ( 1978) ( emphasis
added). This language mirrored the definition of torture contained in the Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or De-grading
Treatment or Punishment, U. N. General Assembly Resolution 3452( XXX) ( December
9, 1975). See also The First United Congress on the Prevention of Crime and the Treatment of
Offenders adopted the Standard Minimum Rules for the Treatment of Prisoners on August 30,
1955 through U. N. Doc. A/ CONF/ 611, annex I, Economic and Social Council Resolution 663
C, 24 U. N. ESCOR Supp. ( No. 10 at 11, U. N. Doc. E/ 3048 ( 1957), amended by Economic and
Social Council Resolution 2076, 62 U. N. ESCOR Supp. ( No. 1) at 35, U. N. Doc. E/ 5 988
( 1977), Art. 31.
117 Questions 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. Doc. E/ CN. 4/ 1314 at 9- 10 ( 1978).
118 BURGERS & DANELIUS, supra note 32, at 121- 22.
119 Id. at 121.
120 See BOULESBAA, supra note 31, at 31.
121 Both the Netherlands and the Grand Duchy of Luxembourg specifically define “ lawful
sanctions” to include sanctions that are lawful under national law as well as international law.
Office of the United Nations Commissioner for Human Rights, Declarations and Reservatio