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Understanding Torture
Law, Violence, and Political Identity
By John T. Parry THE UNIVERSITY OF MICHIGAN PRESS
Copyright © 2010 University of Michigan
All right reserved. ISBN: 978-0-472-05077-2
Chapter One
Torture and International Law
"Torture" is forbidden by international humanitarian law (the law governing armed conflicts), international human rights law, and the laws of most countries. In the language of customary international law, the ban on torture is jus cogens, a peremptory norm from which no derogation is permitted and that overrides contrary treaty obligations. In other words, international law and the laws of many countries appear to establish a general, universal human right not to be tortured. Or so we would like to think.
In this chapter and the two that follow, I describe the international, European, and U.S. law of torture both as it is commonly understood and as it appears from a more skeptical perspective. Subsequent chapters describe modern states' use of torture despite their apparent compliance with an absolute ban. One of the ways in which states attempt to explain or justify their conduct is by exploiting the ambiguities of international law. Whether or not these ambiguities are intentional, states use them in an effort to legitimate or at least avoid censure for torture. All of this casts doubt on the strength of the legal prohibitions.
Customary International Law and Torture
The Ban on Torture
Traditionally, customary international law reflects the "general and consistent practice of states followed by them from a sense of legal obligation." Both components-practice and a sense of obligation to a rule-are essential. More recently, international lawyers have shifted from reliance on practice toward reliance on statements of obligation. This contemporary version of customary international law seems to assume that the expression of norms leads to the practice or implementation of those norms. This assumption is problematic because the emphasis on expression often results in statements becoming substitutes for practice. Indeed, when formal statements overshadow practice, conduct that deviates from these statements can easily be dismissed as aberrant. States can portray themselves as committed to the norms of human rights and international law even as they engage selectively in conduct that violates those norms. Nonetheless, some commentators see this dynamic in positive terms because it allows an expansive concept of human rights: no matter what happens-that is, whether the state complies with the norm or violates it-the abstract norm is reinforced.
This dynamic clearly plays out in the context of torture. A wealth of sources declares that official torture is prohibited by customary international law and that this prohibition is a peremptory norm. The U.S. Court of Appeals for the Second Circuit said in Filartiga v. Pena-Irala,
The international consensus surrounding torture has found expression in numerous international treaties and accords. The substance of these international agreements is reflected in modern municipal-i.e. national-law as well.... The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens.
Since that decision in 1980, the number of sources stating that the ban on torture is a peremptory norm of customary international law has continued to grow. But the Filartiga court also recognized that the practice of nations does not live up to their rhetoric. The court minimized the discrepancy between statements and practice in a footnote, making the assertion that the former supersedes the latter and that violations thus were aberrational by definition.
Any meaningful consideration of practice requires more than a footnote. As Paul Kahn observes, "despite the international law making effort of the twentieth century, it was the most violently destructive period of human history." More specifically, from 1997 to mid-2000, Amnesty International received reports of torture by state agents in 150 countries, with at least 80 deaths, and it concluded that torture was "widespread or persistent" in more than 70 countries. The U.N. special rapporteur on torture recently decried "continuing occurrences of the practice of corporal punishment, such as amputation, stoning, flogging, and beating." The countries that use torture are not easily marginalized as minor actors on the international scene. The United States, China, India, Israel, and many European countries have employed torture in recent decades or have sent people to other countries for coercive interrogation. Thus, if the existence of a customary norm in international law depends on actual practice and not on substitutes for practice, proving the existence of a customary international law ban on torture becomes more difficult.
Yet states rarely practice torture openly and do not publicly affirm its use. The transparency typically associated with democracy or "open" societies limits the use of torture, forces it underground, or requires it to take forms that such societies do not easily recognize as abusive. Concerns about reciprocity and reputation create incentives for the deeds of states to match their words. When torture becomes public, states usually claim that it did not happen, that reports were overblown, or that it was committed by rogue officials. Many states also condemn the use of torture by other countries, albeit selectively and sometimes for reasons having little to do with human rights norms. The persistent practice of torture, therefore, is not a deliberate effort to change international law, even assuming that would be possible in light of the ban's classification as a peremptory norm.
In sum, many states observe the ban on torture only fitfully. They profess allegiance to it and are rarely willing to torture openly, but it is clear that they do not always intend to be bound by it. Under the contemporary approach to customary international law, in which practice is less important than expressions of commitment, this degree of compliance with the anti-torture rule is sufficient to establish it as a peremptory norm of customary international law. Similar analysis supports the conclusion that customary international law also bans a lesser category of "cruel, inhuman, or degrading treatment"-although whether or not this prohibition is a peremptory norm is far less clear.
Even more complicated is the practice of rendition-sending people from one country to another with little or no legal process and outside the context of deportation or extradition, often for the purpose of interrogation. Standing alone, rendition does not raise significant concerns in customary international law. But in the war on terror, officials in the United States and other states have sent people to countries that they know or suspect will use coercive interrogation tactics. The U.N. Convention against Torture bans the transfer of people from one country to another where torture could result, but it says nothing about the risk of cruel, inhuman, or degrading treatment. The International Covenant on Civil and Political Rights is entirely silent on rendition. Nonetheless, a U.N. committee declared that "the transfer of a person to a State where that person faces a real risk of being subjected to torture, cruel, inhuman or degrading treatment or extrajudicial killing would be a breach of customary international law." The effort to address a distressing situation may be commendable, but the committee's inclusion of cruel, inhuman, or degrading treatment within the ban would make customary international law by fiat and in disregard of practice.
The Scope and Limits of Customary International Law
Under any approach, customary international law is shifting and ambiguous. Broad outlines, however, still emerge. A relentlessly practice-based approach, for example, does not provide conclusive support for a sweeping ban on torture, but it does provide significant support for some kind of ban. First, if the amount and degree of coercive treatment-such as beatings during interrogation-has diminished over time and if one assumes that some acts of torture really are aberrations, this shift in practice would support a prohibition of some kind. Second, it is a marker of "real" sovereignty both to sign multilateral human rights and humanitarian law conventions and to profess adherence to related norms of customary international law. These professions of adherence require some level of backing in actual practice and also inform the terms of political discourse in many countries. States have little express interest in engaging in torture openly, because a pledge not to use arbitrary violence-that is, violence imposed outside of legal processes-is one of the hallmarks of a state committed to the rule of law, which, in turn, is a sign of full membership in the international community (of which customary international law attempts to be partly constitutive).
The problem with all of this is the generality and lack of structure in customary international law. Torture may be banned absolutely, and that ban may have the status of a peremptory norm, but the definition of torture remains unclear, even as conduct that most people would call torture remains widespread. The same is true for the related category of cruel, inhuman, and degrading treatment. These absent definitions are critical, first, to determining exactly what is prohibited by a norm that depends so much on practice and, second, because not all of the prohibitions on cruel, inhuman, and degrading treatment can be peremptory norms under any account that takes state practice seriously. Further, to the extent practice remains important, it is difficult to conclude that all of the conduct commonly claimed to be illegal as cruel, inhuman, or degrading treatment really is. Finally, if the definitions are unclear, drawing the lines between the two categories of conduct, between the peremptory and nonperemptory categories, and between illegal and permitted conduct will be at best an inexact process.
The dynamic quality of customary international law also creates problems. Customary international law changes as state practice changes, and states often aspire to change it. With the exception of peremptory norms, the customary international law of human rights need not develop in only one direction. States may properly seek to change customary international law on detention and interrogation. If the lines between the peremptory ban on torture, the possibly peremptory ban on some inhuman conduct, and other, nonperemptory bans on "rough" treatment are vague, the legitimate (if not necessarily desirable) efforts of states to change the nonperemptory norms of treatment may also weaken the ban on torture, despite its formally peremptory status.
The final problem is interpretation. Not only do the vague standards of customary international law make interpretation difficult, but the identity of the interpreter is crucial. The shape of customary international law differs depending on whether it emanates from executive officials in particular countries, domestic legislative bodies, judges on domestic courts, judges on international courts, or officials of nonjudicial international organizations. The lack of a single entity with a "last word" on its content ensures conflict and ambiguity. The result is that customary norms of international law will resolve themselves as questions of politics and diplomacy as much or more than as questions of law decided by courts.
This ambiguity and lack of structure mean that violations of customary international law easily dissolve into disputes over definitions and classifications. These disputes make room for governments to argue that their abusive conduct is exceptional or justified by an emergency situation. To the extent states are able to explain and isolate torture and related forms of abuse, they can make plausible claims that they are complying with the vague standards of customary international law while still reserving the ability to pursue their interests. All of this has the effect, whether perverse or intended, of reinforcing the customary international prohibition even as it is being broken.
The obvious response to these concerns is that customary international law incorporates the definitions of torture contained in treaties and other international agreements. But customary international law's reliance on treaties to obtain precision simply confirms its vagueness. Once we turn to the text of a treaty or other agreement, we have, for most practical purposes, left customary international law behind and moved to a different category of and way of thinking about international law.
From Customary International Law to Treaties
The rest of this chapter examines international law as codified in multilateral conventions. In general, the move from customary international law to treaties frequently fails to produce clarity: either treaties often fail to define critical terms, or they address similar topics with different language. The Vienna Convention on the Law of Treaties provides that a treaty "shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." The convention notes that preparatory work, subsequent agreements about the meaning of a treaty, "relevant rules of international law," and "subsequent practice" are also important. The combination of these approaches will often lead to tension or conflict, and their combined presence in the Vienna Convention indicates that treaty interpretation will be no more determinate than other forms of legal interpretation.
Even greater complexity arises when multiple treaties apply to the same topic in conflicting ways. The problem of conflicting treaties is not a new one in international law, and various competing rules have evolved to address it. The lack of clear doctrine, however, confirms that the proliferation of overlapping international agreements cannot solve the problem of ambiguity.
Further, treaties often require implementing legislation in the countries that sign them, but the resulting legislation may dilute a treaty's force. Countries often also sign a treaty with various reservations, understandings, or declarations (RUDs) that can modify its meaning or undermine its effect. The Vienna Convention insists that RUDs cannot be "incompatible with the object and purpose of the treaty," and controversies have arisen over the efforts of countries, including the United States, to limit the scope of human rights treaties. Controversy notwithstanding, the persistence of RUDs ensures further ambiguity and conflict and suggests that the negotiated text of a treaty is merely a starting point.
Last, as with any statute or constitutional provision, treaty provisions are only a suggestion of the law. Law as people experience it consists far more of what gets enforced, not simply of what is written, and the distance between the aspirations of written law and the protections that emerge in practice is usually much greater for international law than for domestic law. A treaty that creates a specific, universal human right and requires prosecution of those who trample on it may be important on several levels, but if state officials do not investigate or prosecute claims of violations, such a treaty may be worth little to individuals at the level of personal safety and security.
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Excerpted from Understanding Torture by John T. Parry Copyright © 2010 by University of Michigan . Excerpted by permission.
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