A Primer on the Law of Torture

By Anthony Piel, t r u t h o u t

President George W. Bush, Vice President Dick Cheney as well as a succession of current and former attorneys general, legal counsels, secretaries of defense, judicial appointees, CIA agents and others seem to be having difficulty figuring out what constitutes torture or other cruel and inhuman treatment as a matter of law. For example, does “waterboarding” constitute torture? Perhaps they could do with a primer on the subject.

What does the law actually say? According to the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment: “The term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession … inflicted by or at the instigation of or with the consent or acquiescence of a public official or any other person acting in an official capacity … No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture.” Could any statement of law be clearer?

The Convention continues: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” In short, “rendition” is also flat-out illegal. Conviction of acting officials in the chain of command for such violations that are part and parcel of war crimes or crimes against humanity, pursuant to the US inspired, post World War II Nuremberg Doctrine, makes those officials, irrespective of rank, title or position, subject to punishment by life imprisonment or the death penalty. This is no laughing matter. It’s not even a matter of impeachment of a few wayward officials.

Is the US bound by the law? Yes. Can the US president grant immunity? No. The US government crafted, promoted, adopted, signed and ratified the 1984 Convention Against Torture, which therefore automatically becomes the “supreme law of the land,” pursuant to the US Constitution, which itself forbids cruel punishment. No enabling legislation is required to give effect to these basic principles of law. Only the details of how cases are dealt with are subject to further legislation or executive order. Each state party is required by the Convention to enforce its terms under its own national criminal law. The failure to do so is itself a violation of international and US Constitutional law.

(Original Article)